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2020-01-17 22:03:07.266746+00

Love

*1359OPINION. Love : The pleadings in these proceedings raise substantially only one issue, but in that connection a number of collateral or secondary questions arise. The primary issue concerns the amount of taxable income derived by petitioners in 1925 from the transactions evidenced by the contracts referred to in our findings of fact, above. During the taxable year 1925 petitioners each received from the corporation the sum of $200,000, less amounts theretofore withdrawn by them in excess of salary, in consideration of the surrender of their rights and interests in the corporation and the cancellation of said contracts, with the exception of certain reserved interests not here material. Each petitioner reported in his return for 1925 the entire amount of $200,000 as capital gain, and now contends that the amount so reported was excessive, in that the maximum amount of taxable capital gain realized was not more than $115,000. In each case the respondent treated the entire amount of $200,000 as ordinary income subject to tax at the normal and surtax rates. The respondent contends, first, that said amounts represent compensation paid to petitioners in the taxable year for personal services rendered in prior years, and, second, that even if said amounts be regarded as consideration paid for the cancellation of the contracts, the entire amount is taxable as ordinary income, since the contracts cost petitioners nothing. The questions arising under the issue are: (1) Did petitioners, by the contract of April 1, 1920, thereby and at said time acquire a definite and vested interest in the corporation? (2) Did the petitioners, by the contracts of May 28, 1925,- effective as of April 1, 1925, sell their vested interests in the corporation for the consideration stated, or was the amount of $200,000 paid to each as compensation for personal services rendered? (3) If the transaction was a sale of property rights, to what basis are petitioners entitled in computing the gain derived from such sale? (4) Was the contract of April 1, 1920, which was merged or restated in the contract of October 12, 1922, a capital asset ” in the hands of petitioners, so that the gain derived by them upon its cancellation is subject to tax at the rate applicable to capital gains ? (5) Were the amounts in excess of salaries, withdrawn by petitioners prior to 1925, income to petitioners in the taxable year? These questions will be considered in the order stated. Question 1. What result was effected by the contract of April 1, 1920? Under this contract, did petitioners at that time become the owners of definite interests in the corporation, or, as contended by the respondent, did the contract merely constitute a promise on *1360the part of the corporation and its stockholders to give to each of petitioners 8 per cent of the common stock of the corporation at same indefinite date in the future when the corporation should be “ reorganized ” as provided in the contract ? The answers to these questions, we think, are to be found in the plain and unambiguous language of the instrument itself, which clearly sets forth the intention of the parties. Prior to the execution of the contract, Howe, Snow and Bertles were the only stockholders of the corporation. They are referred to in the contract as the “ old stockholders ” and petitioners are referred to as “new stockholders.” The instrument provided that “As soon as it is deemed feasible and advisable to do so by the Corporation, and its counsel, the Corporation shall be reorganized,” etc. The contemplated “ reorganization ” appears to have consisted merely of a new set-up of the capital structure of the corporation, with a possible change of name. There was no provision for the dissolution for the then existing corporation and the organization of a new or successor corporation. Under the so-called “ reorganization ” plan, the corporation was to have a capital stock consisting of 7,500 shares of 7 per cent cumulative preferred stock of the par value of $100 per share, and 7,500 shares of common stock of the same par value, or no par value, as might be deemed advisable at the time the “reorganization ” was made effective. It was provided that the preferred stock should be issued to the “ old stockholders ” in equal shares, and that the common stock should be issued 1,900 shares to each of the “ old stockholders ” and 600 shares to each of the “ new stockholders.” Thus, each of the new stockholders, including the petitioners, was to receive 8 per cent of the common stock of the corporation. The contract further provided: The right and interest of the new stockholders respectively in the new corporation * * * shall become effective as of the First day of April, 1920, and their property rights and rights of dividends and other revenue and income from the corporation shall be precisely as though the corporation, hereinafter defined and provided for, had been completed and the stock issued as of April 1, 1920, and the rights of all parties from and after that date are defined and limited by this agreement. Not only were petitioners each given a definite interest in the corporation effective on and after April 1, 1920, but the contract provided that in the case of an increase of the capital, “ each of the parties shall have the option to maintain his proportionate interest in the corporation as established by this agreement.” Upon consideration of the instrument as a whole, in the light of the surrounding facts and circumstances disclosed by the record, it is our opinion that, immediately upon execution of the contract, *1361petitioners each became the beneficial owner of 600 shares, or 8 per cent, of the common stock of the corporation precisely to the same extent as if the so-called reorganization had been effected on that date and a stock certificate issued to each petitioner for the interest given to him. As such stockholder, each petitioner became entitled on April 1, 1920, to receive dividends upon the stock given to him and to exercise all other rights, privileges and duties of stockholders. Pursuant to the contract and by virtue of his ownership of the stock interest, each petitioner was elected an officer of the corporation and his authority correspondingly increased. Prior to the date of the contract, petitioners were highly valued employees of the corporation and they had theretofore made known their intention of severing their connections with the corporation unless they were given an interest in the business. The old stockholders, who were also the directors and officers of the corporation, desired to retain their services, and to that end each petitioner was given an 8 per cent interest in the corporation and its assets on April 1, 1920. The fact that the contemplated “ reorganization ” was not effected on said date and stock certificates issued to petitioners is immaterial. A stock certificate merely constitutes evidence of ownership of an interest in a corporation; it is not the stock itself nor esesntial to the ownership thereof. Richardson v. Shaw, 209 U. S. 365; Fletcher on Corporations, vol. V., p. 5604, § 3426. Question ¾. Did the petitioners, by the contracts dated May 28, 1925, each sell as of April 1, 1925, his stock or interest in the corporation for $200,000, or was the amount paid to each compensation for personal services? A separate contract, each identical in term with the other, was executed by the corporation and petitioners, and each contract was designated “ Contract for Sale of Interest.” Petitioner in each contract was referred to as the “ Vendor ” and in each contract it was provided that: The Company hereby agrees to pay to said Vendor forthwith the 'sum of Two Hundred Thousand Dollars ($200,000), less the present indebtedness of the Vendor to the Company appearing on its books', in consideration • of the surrender of the rights and interest of the Vendor herein referred to. The rights and interest referred to are explained in the succeeding paragraph of the contract as “ all rights and interest of the Vendor in said Company or its ássets,” with exceptions not material here. This clearly indicates, we think, that petitioners acquired in 1920, ownership of definite interests in the corporation, which property rights or interests they sold to the corporation in 1925, each for a consideration of $200,000. Question 3. Having reached the conclusion that petitioners acquired definite interests in the corporation in 1920, which interests constituted property, and such property having been sold by them *1362to the corporation in the taxable year 1925, the next question is, to what basis are petitioners entitled in computing the gain from such sale ? The respondent contends that the basis is cost, and that since the contract of April 1, 1920, cost petitioners nothing, the entire amount received by them upon its cancellation in 1925 represents taxable gain. This contention, we think, is erroneous. We are dealing here not with the exhaustion of a contract nor the sale of a contract. The contract in question was merely evidence of or defined the property rights which petitioners acquired thereunder at the time of its execution. Those property rights were given to petitioners on April 1, 1920, for the purpose of retaining their services for the corporation. It is not necessary to decide whether the property was acquired by petitioners as a gift or as compensation for services. If acquired as a gift, since acquired before December 31, 1920, the basis for determining the gain or loss from its subsequent sale is the fair market value of the property at the time of such acquisition. Sec. 204 (a) (4), Revenue Act of 1926. ' If the property was transferred to petitioners as compensation for services, the property when received constituted taxable income to petitioners, to the extent of its then fair market value, which we have found was $85,000, and only the difference between such fair market value in 1920 and the amount received therefor on its sale in 1925, constitutes taxable gain in the latter year. Fred J. Collins, 16 B. T. A. 1426; Saunders v. Commissioner, 29 Fed. (2d) 834; Schneider v. Duffy, 43 Fed. (2d) 642. Question f. Was the contract of April 1, 1920, a capital asset in the hands of petitioners so that the gain derived upon its cancellation is taxable at the rate applicable to capital gains? The property rights acquired by petitioners under the contract in question were held by them for more than two years, namely, from April 1, 1920, to April 1,1925, and the sale thereof was consummated after December 31, 1921. Hence, the gain derived is, in our opinion, clearly capital gain within the following provisions of the Revenue Act of 1926: Sec. 208. (a) For the purposes of this title— (1) The term “ capital gain ” means taxable gain from the sale or exchange of capital assets consummated after December 31, 1921; * * Hi * * * * (8) The term “capital assets” means property held by the taxpayer for more than two years (whether or not connected with his trade or business) * * *. Question 5. This brings us to the last question raised, that is to say, whether or not the amounts withdrawn by petitioners from the corporation prior to 1925, constitute income to or were received by *1363petitioners in the taxable year. There now appears to be no serious controversy between the parties on this point. Prior to 1925, and subsequent to the execution of the contract of April 1, 1920, no dividends were declared by the corporation either on the preferred or common stock. During this period, petitioners withdrew amounts from the corporation from time to time against their rights to receive dividends. Such amounts were charged to petitioners on their respective accounts on the books of the corporation, and the amounts of their specified salaries credited thereon. At December 31, 1924, petitioner Bradbury - had withdrawn from the corporation $48,835.69 in excess of salary credits, and petitioner Eifert had similarly withdrawn $36,890.31. The respondent, in his brief, argues that these amounts were received by the respective parties in the taxable year, and petitioners in their brief, in effect, concede the fact. The debit balances referred to were carried by the corporation on its books as accounts receivable until execution of the contracts on May 28, 1925, when petitioner’s accounts were credited each with the amount of $200,000. The right of petitioners to the amount withdrawn prior to 1925 thus did not become absolute and unconditional until within the latter year, and the view that they received these amounts in said year is, in our opinion, therefore, correct. Summarizing what we have said above, petitioners each acquired by gift on April 1, 1920, property having then a fair market value of $85,000. They sold said property in 1925 for $200,000. Each petitioner realized on such sale a capital gain of $115,000. The deficiencies will be redetermined accordingly. J udgments will be entered under Rule 50.

2020-01-17 22:03:07.300889+00

Love

*1371OPINION. Love: The petitioner alleges that the respondent erred in computing taxable income for 1923 in that he understated the merchandise inventory owned by it at the beginning of the year by the amount of $103,114.87, thereby overstating income for the year by the same amount. The respondent denies that he committed the error complained of. In computing the petitioner’s taxable income for 1923 the respondent has used as the opening inventory the amount of the perpetual or book inventory. He used the physical inventory taken on December 31, 1923, as the closing inventory. There is no controversy between the parties with respect to the closing inventory. It is only with respect to the amount of the opening inventory that they disagree. The petitioner contends that since the physical inventory taken at December 31, 1923, was used as the closing inventory for 1923, the opening inventory as shown by its books and reported in its return should be increased to an amount which would represent the actual inventory on hand at the beginning of the year. It contends that the amount necessary to be added to the book inventory at the beginning of 1923 to produce this result is $103,114.87. In support of its contention that the book inventory at the beginning of 1923 should be increased by $103,114.87 to arrive at the *1372amount of the actual or correct opening inventory for 1923, the petitioner submitted the testimony of its president. He testified that it was his “ actual conviction ” that the opening inventory as shown by the books was understated by the amount of $103,114.87. The Commissioner determined that the opening inventory for 1923, being the same as the closing inventory for 1922, as made by petitioner, and used by it in its tax return for 1922, was correct. That determination constitutes a prima facie case. In order to overcome that prima facie cas.e, it devolved on the petitioner to submit satisfactorj’- evidence that it was incorrect. The “ actual conviction ” of petitioner’s president is not such evidence. On questions of this kind, we may not rely on guesses, surmises, or convictions. Evidence of actual facts is necessary. Were we to indulge in surmises, there might be as many or more surmises suggested against petitioner’s contention as could be suggested in favor of such contention. As said by us in the case of Universal Steel Co. v. Commissioner, 16 B. T. A. 788 (affirmed by C. C. A., 46 Fed. (2d) 908): We can not say upon the evidence before us that the inventory of December 31, 1918, as twice returned by the petitioner and apparently as often accepted by the respondent, is clearly incorrect. It is only by indulging, as the petitioner asks us to do, in the probabilities of the matter that there appears to be any force whatever in the petitioner’s contentions. But whatever the probabilities may seem to be, they are outweighed by other considerations of greater importance. The respondent has determined that the inventory as twice returned by the petitioner was correctly valued, both as to manufactured and purchased materials, and the prima facie correctness of that determination can only be overcome by satisfactory proof of error, and not by mere indulgence in the mathematical probabilities of the situation. In W. P. Weaver, 2 B. T. A. 709, we were confronted with a somewhat similar situation, and we refused to disturb the respondent’s determination as to the value of the inventory of the preceding year, holding that “Determinations of the Commissioner involving inventories which have compensating effects upon succeeding taxable years are not to be disturbed except by clear and convincing evidence of error, particularly in cases in which the taxpayer has received the benefit of alleged error in an earlier year barred at the time of appeal to this Board by the statute of limitations. On this issue the action of the Commissioner is approved. The remaining issue relates to the deduction to which the petitioner is entitled for bad debts. The parties have stipulated and we have found as a fact that such deduction is to be computed on the basis of a reasonable addition to a reserve for bad debts. Until December 31, 1923, the petitioner carried on its books two accounts with respect to its bad debts. One of these was the “ reserve for bad debts,” and the other the “ suspense account.” The two accounts appear to have been only parts of a whole and when consoli*1373dated they represent a reserve for bad debts account. By consolidating them, as was actually done by' the petitioner at the end of 1923, there is disclosed a net reserve for bad debts at January 1,1923, of $4,372.51. (Credit balance in “ reserve for bad debts ” at January 1, 1923, of $58,336.76, less $53,964.25 representing debit balance in “ suspense account ” on same date.) For the years 1921 and 1922 the petitioner credited the “ reserve for bad debts ” account with the amounts of $1,409.74 and $3,000 respectively. For these years the respondent allowed as deductions representing reasonable additions to the reserve for bad debts the amount of $6,580.05 for 1921 and $6,373.13 for 1922. The total of the differences between the amounts allowed as deductions by the respondent and the amounts credited to the “ reserve for bad debts ” account by the petitioner, or $8,543.44, should be added to the amount of $4,372.51 disclosed by a consolidation of the accounts as the reserve for bad debts at January 1, 1923. By doing this the petitioner is found to have had a reserve for bad debts of $12,915.95 at January 1, 1923. Neither the respondent nor the petitioner contends that this amount did not constitute ample provision for bad debts on that date. In fact the petitioner’s president was of the opinion that $4,372.51 constituted a sufficient reserve. During 1923 the petitioner ascertained- certain accounts receivable amounting to $23,314.76 to be worthless and charged them off directly to profit and loss instead of to the reserve for bad debts. In its income-tax return it took a deduction of $23,314.76 for bad debts actually sustained. While at the end of 1923 the petitioner added to its reserve for bad debts account the amount of $25,000, it did not take any deduction in its return on account of this addition. The respondent in determining the deficiency disallowed the deduction of $23,314.76 taken by the petitioner for actual bad debts charged off, but did allow a deduction of $8,139.08, computed as set out in our findings of fact, as representing a reasonable addition to the petitioner’s reserve for bad debts for 1923. While the petitioner concedes in its brief that it was in error in taking a deduction in its return for actual bad debts sustained during the year, it contends that it is entitled to a deduction of such an amount as will provide a reasonable reserve at the close of 1923 against bad debts imbedded in its accounts receivable after taking into consideration charges that should properly have been made to the reserve for bad debts on account of debts ascertained to be worthless during the year. The petitioner contends that the amount necessary for this purpose is $48,314.76, or $40,175.68 more than the amount allowed by the respondent. The $48,314.76 contended for by the petitioner is composed of $23,314.76 representing the amount of bad debts charged off in 1923 and disallowed as a deduction by the re*1374spondent and $25,000 representing the amount of the addition made by the petitioner in 1923 to its reserve for bad debts, but which was not taken by it as a deduction. While the petitioner may not deduct both bad debts charged off and an addition to a reserve for bad debts, the total of the two amounts may be allowed as a deduction provided it meets the test of reasonableness. Rhode Island Hospital Trust Co. v. Commissioner, 29 Fed. (2d) 339; Harry Kahn et al., 17 B. T. A. 499. Although the petitioner does not contend that it is entitled to deduct both specific bad debts and the addition to the reserve, it contends that it is entitled to a deduction of an amount equal to the total of the two, since such an amount is a reasonable addition to the reserve in order to result in a proper balance at the end of 1923. As pointed out above, the correct balance in the petitioner’s reserve for bad debts at January 1, 1923, was $12,915.95. Debts ascertained to be worthless in 1923 and properly chargeable against the reserve amounted to $23,314.76. Accordingly, at the end of 1923 the amount of the reserve was not only wiped out, but there was a deficit of $10,398.81. The respondent allowed an addition to the reserve of $8,139.08 for 1923. His allowance plus the amount of the reserve at January 1, 1923; lacks $2,259.73 of being large enough to provide for the bad debts written off during 1923. His allowance would not only leave the reserve without a balance against which to charge doubtful accounts carried in the accounts receivable at the end of the year, but would leave the reserve with a deficit, which would be an anomaly. The amount of the reserve at January 1, 1923, having been sufficient, we think it is clear that the amount allowed by the respondent as an addition to the reserve was too small. The petitioner’s president who went over the accounts receivable ■at the end of 1923 and determined the amount that should be added to the reserve, testified that he was of the opinion that the deduction of $48,314.76 contended for by the petitioner was a reasonable addition to the reserve for bad debts for the year 1923. However, we are not bound in our decision by his opinion alone, but we must also consider the facts in the case as well as the basis for his opinion. Stewart & Bennett, Inc., 20 B. T. A. 850; Atlantic Bank & Trust Co., 10 B. T. A. 796. The amount of bad debts charged off in 1923 was greatly in excess of the amount charged off in any of the preceding six years and was more than one-half the total for those years. The addition to the reserve for bad debts contended for was more than three times the total amount taken by the petitioner as a deduction therefor in its returns for 1921 and 1922 and almost twice as much as the total *1375amount allowed by the respondent for those years. The petitioner, however, was operating under different conditions in 1923 from those of prior years. In that year it became more liberal with credit in order to increase its business. During the year a great many mortgages given by farmers in the area in which the petitioner sold merchandise were foreclosed. This directly affected the collectibility of accounts owing to the petitioner by certain of its farmer debtors. It also affected the financial condition of many small dealers in the country who were customers of the petitioner, as well as the condi-lion of others who owed the petitioner. The evidence indicates that the credit standing of many of the petitioner’s old and formerly reliable customers was wiped out by bankruptcy or by the foreclosure of mortgages during 1923. In view of the changed conditions in 1923 we do not think it would be proper to base a determination of the amount to be added to the reserve for bad debts in 1923 upon the amount of bad debts for prior years or upon the additions made to the reserve in prior years. In our opinion the determination is to be based upon conditions existing in 1923. Rhode Island Hospital Trust Co. v. Commissioner, supra. It was on the petitioner’s liberality in allowing credit in 1923, together with the above mentioned conditions existing in that year and his knowledge of the financial condition of the petitioner’s debtors, that the petitioner’s president based his opinion as to the amount of $48,314.76 being a reasonable addition to the petitioner’s reserve for bad debts. Another factor, which his testimony indicates was taken into consideration by him, was that the balance of the reserve at January 1, 1923, was $4,372.51 instead of $12,915.95, the correct amount, as heretofore indicated. From a consideration of the evidence and giving effect to the understatement by $8,543.44 of the reserve for bad debts as carried on the petitioner’s books at January 1, 1923, we think the petitioner is entitled to a deduction of $39,771.32 for 1923 as a reasonable addition to its reserve for bad debts. By adding this amount and the correct reserve at the beginning of the year and subtracting therefrom bad debts of $23,314.76 charged off during the year, the petitioner has a closing balance in the reserve at the end of 1923 of $29,372.51, which we think from the evidence is a reasonable reserve for bad debts at that time. Since the petitioner is entitled to a deduction of $39,771.32 as a reasonable addition to its reserve for bad debts, and as the respondent allowed a deduction of $8,139.08 in determining the deficiency, a further deduction of $31,632.24 should be made from the petitioner’s income in recomputing the deficiency. Judgment will be entered imder Rule 50.

2020-06-05 09:06:57.80379+00

http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20200604_C340943_53_340943.OPNORDER.PDF

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED June 4, 2020 Plaintiff-Appellee, v No. 340943 Wayne Circuit Court DWUAN TAMAUL PARKMAN, LC No. 16-006766-01-FC Defendant-Appellant. Before: RIORDAN, P.J., and JANSEN and STEPHENS, JJ. PER CURIAM. Following his second jury trial,1 defendant, Dwuan Tamaul Parkman, appeals as of right his jury convictions of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(c), and first-degree home invasion, MCL 750.110a(2). The trial court sentenced defendant as a fourth- offense habitual offender, MCL 769.12, to a prison term of 35 years to 35 years and a day for the CSC-I conviction, and a consecutive prison term of 20 to 30 years for the first-degree home invasion conviction.2 We affirm defendant’s convictions, but remand for further sentencing proceedings consistent with this opinion. I. FACTUAL BACKGROUND Defendant’s convictions arise out of a sexual assault perpetrated against an 18-year-old Canadian flight attendant (“the victim”) while she was staying overnight at a hotel near Detroit Metropolitan Airport. Defendant, who was a “regular” at the “Wheat & Rye” restaurant and bar that the victim patronized on the evening in question with two of her coworkers, followed the victim back to her hotel, the “Days Inn” hotel in Romulus. He waited until she was asleep, gained access to her room without her permission, undressed her as she slept under the influence of 1 Defendant’s first jury trial ended in a hung jury. 2 Defendant was also convicted of third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(c), but the trial court vacated that conviction at sentencing. -1- alcohol, and penetrated her vaginally while she was still unconscious. Surveillance footage from the restaurant showed that defendant was present during the same timeframe as the victim. Surveillance footage from outside the restaurant shows that shortly before the victim and her group left in a taxi, defendant went outside to the restaurant’s rear parking lot, entered a car, drove to the front parking lot (where the taxi was waiting), backed into a parking space near the parking lot’s exit, and turned off his car’s headlights. He waited until the taxi pulled away, then turned on his headlights and followed immediately behind it. Defendant was not a hotel customer on the evening in question. The hotel’s surveillance footage showed that after following the victim and her coworkers into the hotel lobby, defendant wandered around for some time, seemingly without aim, with a cell phone pressed to his ear. Defendant remained at the hotel for approximately three hours. At times, he went up to the victim’s floor and walked around. At one point, when hotel staff was not present, defendant leaned over the front desk in the hotel lobby, flipping through a rolodex of hotel guests. He also reached over and appeared to grab a keycard from behind the counter. Defendant subsequently conversed with the night manager. He told the manager that he was “concerned about” his girlfriend because she had been “ill.” Defendant gave the manager her name and room number, and after verifying that a person with that name was staying in the given room, the manager called the room, but there was no answer. At defendant’s insistence, the manager called a second time, but there was again no answer. After this, the manager saw defendant leave and continue to wander around with his cell phone pressed to his ear. The manager assumed that defendant was continuing to try to call his girlfriend. According to the victim, when she retired to her room for the evening, she opened her room door using one of the two keycards that had been provided to her—both of which she retained in her possession—and entered. She assumed that the door would fully close and automatically lock behind her, so she did not engage either the deadbolt or the swing-bar latch. It was later discovered that the door to the victim’s room would often close incompletely, such that its automatic locking mechanism would not latch. When this occurred, the door could be pushed open from the outside with minimal force. The victim went to her bed and video chatted with her boyfriend. While the two were conversing, she heard someone knocking at her door and “a voice telling [her] to let him in.” She looked out of her room’s peephole, but did not see anyone. The same thing happened once or twice more while the victim was speaking with her boyfriend. After hanging up with her boyfriend, the victim looked out the peephole again, did not see anyone, and then got into bed. She had been sick all day and felt “a little bit” intoxicated. So, she left the bathroom door open and the bathroom light illuminated, and fell asleep fully dressed in leggings, a shirt, and underwear. The victim’s next memory was of waking up in the bed on her back and finding that her legs were spread, she was nude from the waist down, and there was “a man on top of [her].” The man’s face was “right in front of” her, but aside from the fact that he was an “older” African- American male, she could not see any details that would permit her to identify him. The victim “didn’t know what to think,” “was in shock,” and “just started crying.” During defendant’s second jury trial, the victim was no longer able to specifically recall -2- whether the man on top of her was in any physical contact with her genitals or had penetrated her. She explained that, as a coping mechanism that she has learned in therapy, she has actively tried to “block . . . out” her memories of the sexual assault. However, she indicated that her memory had been clearer at both the preliminary examination and defendant’s first jury trial. Over defendant’s objection, the victim testified that at her preliminary examination, she had testified that the man on top of her had been “raping” her and that his penis had been inside of her “genital opening[.]” She also testified that her memory concerning penetration had been the same at defendant’s first jury trial, as had her testimony. The victim’s “next memory was standing at the door telling him that he needed to go.” She could not recall the man getting off of her or how she had gotten to the door. Ultimately, however, the man left, and the victim called her mother. According to the victim’s mother, the victim was “crying hysterically,” “moaning,” and unable to speak coherently. Eventually, her mother was able to get her calmed down enough to answer some questions about what had happened. In “half sentences,” the victim indicated that “a black man had broken into her room” and “hurt” her. After speaking with her mother and her grandmother, the victim went to the front desk and reported the incident, and the police were summoned. A forensic examination of the victim was performed, which included the collection of swabs for DNA testing. During the examination, a nurse asked the victim whether the unknown man’s penis had penetrated her vagina, the victim initially replied, “I think it did.” But she then stated, “I’m pretty sure it did. 100% positive.” Defendant’s DNA matched the DNA collected from a swab taken from the victim’s labia majora and neck. The jury found defendant guilty of CSC-I and first-degree home invasion.3 This appeal ensued. II. STANDARDS OF REVIEW Defendant raises several claims of error on appeal, which we review under varying standards. “Whether defense counsel performed ineffectively is a mixed question of law and fact; this Court reviews for clear error the trial court’s findings of fact and reviews de novo questions of constitutional law.” People v Trakhtenberg, 493 Mich. 38 , 47; 826 NW2d 136 (2012). Preserved “[c]laims of instructional error are generally reviewed de novo by this Court, but the trial court’s determination that a jury instruction is applicable to the facts of the case is reviewed for an abuse of discretion.” People v Dobek, 274 Mich. App. 58 , 82; 732 NW2d 546 (2007). We also review for an abuse of discretion a trial court’s decision to remove a seated juror, People v Unger, 278 Mich. App. 210 , 259; 749 NW2d 272 (2008), and to exercise statutory discretion to impose consecutive sentences, People v Norfleet, 317 Mich. App. 649 , 654; 897 NW2d 195 (2016). “An 3 The jury also found defendant guilty of third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(c) (penetration and the victim was “mentally incapable, mentally incapacitated, or physically helpless”), but the trial court vacated that conviction (apparently on double jeopardy grounds) at sentencing. -3- abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes.” People v Bass, 317 Mich. App. 241 , 256; 893 NW2d 140 (2016) (quotation marks and citation omitted). We review defendant’s several unpreserved claims of error under the Carines4 plain-error test, which “has four elements”: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) . . . the plain error affected substantial rights . . . [, and 4) ] once a defendant satisfies these three requirements, an appellate court must exercise its discretion in deciding whether to reverse. Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant’s innocence. [People v Randolph, 502 Mich. 1 , 10; 917 NW2d 249 (2018), quoting People v Carines, 460 Mich. 750 , 763; 597 NW2d 130 (1999) (alterations and ellipses in Randolph).] “A ‘clear or obvious’ error under the second prong is one that is not subject to reasonable dispute.” Randolph, 502 Mich. at 10 . The third element “generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings.” Carines, 460 Mich. at 763 . “It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.” Id. (quotation marks and citation omitted). III. ANALYSIS Defendant raises several issues on appeal. Each is addressed in turn. A. INEFFECTIVE ASSISTANCE OF COUNSEL Defendant argues that his trial counsel performed ineffectively in a variety of ways, such that defendant is now entitled to a new trial. We disagree. The “defendant has the burden of establishing the factual predicate for his claim of ineffective assistance of counsel. . . .” People v Hoag, 460 Mich. 1 , 6; 594 NW2d 57 (1999). As this Court explained in People v Lockett, 295 Mich. App. 165 , 187; 814 NW2d 295 (2012): Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise. To establish an ineffective assistance of counsel claim, a defendant must show that (1) counsel’s performance was below an objective standard of reasonableness under prevailing professional norms and (2) there is a reasonable probability that, but for counsel’s error, the result of the proceedings would have been different. [Citations omitted.] “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 4 People v Carines, 460 Mich. 750 ; 597 NW2d 130 (1999). -4- Strickland v Washington, 466 U.S. 668 , 694; 104 S. Ct. 2052 ; 80 L. Ed. 2d 674 (1984). The “reasonable probability” standard can be satisfied by less than a preponderance of the evidence. Trakhtenberg, 493 Mich. at 56 . The “reviewing court must not evaluate counsel’s decisions with the benefit of hindsight,” but should “ensure that counsel’s actions provided the defendant with the modicum of representation” constitutionally required. People v Grant, 470 Mich. 477 , 485; 684 NW2d 686 (2004), citing Strickland, 466 U.S. at 689 (“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”). “Defense counsel is given wide discretion in matters of trial strategy because many calculated risks may be necessary in order to win difficult cases.” Unger, 278 Mich App at 242. Thus, there is a “strong presumption that trial counsel’s performance was strategic,” and “[w]e will not substitute our judgment for that of counsel on matters of trial strategy[.]” Id. at 242-243. “Yet a court cannot insulate the review of counsel’s performance by calling it trial strategy.” Trakhtenberg, 493 Mich. at 52 . “The inquiry into whether counsel’s performance was reasonable is an objective one and requires the reviewing court to determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” People v Vaughn, 491 Mich. 642 , 670; 821 NW2d 288 (2012) (quotation marks and citation omitted). Accordingly, the reviewing court must consider the range of potential reasons that counsel might have had for acting as he or she did. Id. 1. PERFORMANCE DURING JURY SELECTION During the prosecution’s voir dire of the prospective jurors, the prosecutor indicated that this case had “garnered some media attention” and asked the potential jurors if they recalled viewing any of the media coverage. Ultimately, six of the prospective jurors did, and at least two of them indicated that they were uncertain whether they could be impartial based on the pretrial publicity to which they had been exposed. Defense counsel also briefly questioned the venire at times concerning pretrial publicity, as did the trial court. Neither the prosecution nor the defense challenged any of the jurors who had been exposed to pretrial publicity for cause. Collectively, however, the prosecution and defense used peremptory challenges to excuse all but one of the jurors who reported exposure to pretrial publicity. The sole exception was Juror #1, who was seated for trial. On the topic of media coverage, Juror #1 stated, “I heard about the case but I don’t remember any details, I think I saw it on television.” She further indicated that she had formed no opinions about the case based on pretrial publicity, believed that she could “be a fair and impartial juror in this matter,” and thought that she would be able to “judge this case based solely on the evidence that[ was] presented in court[.]” On appeal, defendant argues that counsel performed ineffectively by failing to perform a more thorough voir dire of the prospective jurors with regard to racial considerations and pretrial publicity, failing to object to the trial court’s “superfluous” voir dire and the court-imposed time -5- limits on voir dire,5 failing to request sequestration during voir dire, and by wasting peremptory challenges on potentially biased jurors instead of attempting to challenge them for cause. Defendant’s arguments are unavailing. Defendant’s reliance on United States v Cronic, 466 U.S. 648 ; 104 S. Ct. 2039 ; 80 L. Ed. 2d 657 (1984), is misplaced. Defendant contends that trial counsel’s alleged failures during jury selection were so severe that they effectively deprived him of any assistance of counsel. Defendant further contends that jury selection is a “critical” stage of the proceedings and that, as such, counsel’s poor performance constitutes the sort of structural error contemplated in Cronic. Thus, defendant argues, he is entitled to a presumption of prejudice and need not present any record evidence here to satisfy the second prong of the Strickland test for ineffective assistance (i.e., a reasonable probability of a different outcome but for counsel’s deficient performance). Defendant relies on a portion of Cronic in which the United States Supreme Court noted that there are “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified,” the most notable of which is “the complete denial of counsel” “at a critical stage” of the proceedings. Cronic, 466 U.S. at 658-659 . The Cronic Court further noted that, in certain circumstances, “a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” Id. at 659-660. As explained in People v Lewis, 501 Mich. 1 , 6-8; 903 NW2d 816 (2017), however, such statements in Cronic were hypothetical musings about situations not before the Court in that case, and thus they constituted dicta. Those statements of dictum were also “clearly incompatible” with the United States Supreme Court’s earlier decision in Coleman v Alabama, 399 U.S. 1 ; 90 S. Ct. 1999 ; 26 L. Ed. 2d 387 (1970), in which a majority of the Court, after deciding that a preliminary hearing was a “critical stage” of the proceedings, held that harmless-error review was appropriate despite the fact that the defendant had been deprived of counsel entirely at his preliminary hearing. Lewis, 501 Mich. at 6-7 . Because the relevant statements in Cronic were dicta, whereas the pertinent holding in Coleman was binding, our Supreme Court held that it was obliged to follow Coleman and hold that the deprivation of counsel at a critical pretrial proceeding “is subject to harmless-error review under the federal Constitution.” Lewis, 501 Mich. at 9 . Defendant offers no prejudice analysis, instead contending that under the Strickland test for ineffective assistance, he is entitled to a presumption that he was prejudiced by his counsel’s alleged failures during jury selection. That argument runs directly contrary to the rule of law announced in Lewis, and thus, we reject it. See People v Crockran, 292 Mich. App. 253 , 256-257; 808 NW2d 499 (2011) (“[O]nly the Supreme Court has the authority to overrule its own decisions. Until it does so, all lower courts and tribunals are bound by that prior decision and must follow it”) (quotation marks and citations omitted). Indeed, we perceive defendant’s reliance on Cronic as a tacit admission that he cannot 5 Defendant presents no record evidence indicating what time limits, exactly, were imposed by the trial court. The record indicates that jury selection in this case lasted approximately 2 hours and 45 minutes. -6- demonstrate prejudice on this record, and we agree he has failed to do so. He has presented no record evidence demonstrating a reasonable probability that, but for counsel’s allegedly deficient performance during jury selection, the outcome of the trial would have differed. Defendant presents no evidence that any of the empaneled jurors were actually biased on grounds of race or pretrial publicity. Absent such evidence, defendant cannot carry his burden under the second prong of Strickland. Moreover, with regard to the first prong of the Strickland test, defendant has failed to rebut the strong presumption that his trial counsel employed effective trial strategy during jury selection. Because of the inherently subjective nature of jury selection, which is more art than science, this Court ordinarily refrains from second-guessing counsel’s decisions concerning prospective jurors. See, e.g., Unger, 278 Mich. App. at 258 . “Perhaps the most important criteria in selecting a jury include a potential juror’s facial expressions, body language, and manner of answering questions. However, as a reviewing court, we ‘cannot see the jurors or listen to their answers to voir dire questions.’ ” Id. (citation omitted), quoting People v Robinson, 154 Mich. App. 92 , 94; 397 NW2d 229 (1986). “Of all the important communications between human beings, at least 50% is nonverbal.” Robinson, 154 Mich. App. at 95 (quotation marks and citation omitted). “A lawyer’s hunches, based on his observations, may be as valid as any method of choosing a jury. Defense counsel may want to retain certain prospective jurors, especially, and be willing to express satisfaction so the prosecution will not or cannot eliminate them.” Id. Moreover, counsel may be rightfully concerned that, should he unsuccessfully challenge a juror for cause, “that unsuccessful challenge[] . . . would not be viewed favorably by the jury.” Id. at 94. Hence, as this Court observed in Robinson, “[o]ur research has found no case in Michigan where defense counsel’s failure to challenge a juror or jurors has been held to be ineffective assistance of counsel. We cannot imagine a case where a court would so hold[.]” Id. at 95. This case does not present any exception to that well-founded rule. 2. THE DEFENSE’S OPENING STATEMENT Defendant argues that trial counsel performed ineffectively by making the following remarks during opening statement: We also expect the evidence to show that Mr. Parkman [i.e., defendant] is an individual who hangs out at this, um, Wheat & Rye Restaurant. Um, he’s familiar with the, the owner. Or not the owner, but some of the workers. He’s familiar with the manager. Um, he goes to that establishment to sell drugs. You’ll see from one of these videos that he’s in back of the bar with another individual smoking a joint. You’ll see that, um, Mr. Parkman is familiar with that establishment. He’s familiar with the, um, the hotel. When questioned about those comments at the Ginther6 hearing, counsel explained that he made 6 People v Ginther, 390 Mich. 436 ; 212 NW2d 922 (1973). -7- them because they reflected the testimony that counsel anticipated at trial, and because they allowed the defense a theory to explain why defendant was at the hotel on the night in question. Specifically, based on what defendant had told counsel, counsel expected that the restaurant’s manager would testify that defendant sold drugs at the bar. Using that anticipated testimony, defense counsel planned to argue that defendant went to the hotel on the night in question to sell narcotics, not to sexually assault the victim. At trial, however, when the prosecution aggressively questioned the manager about whether defendant had sold drugs out of the restaurant, the manager denied any knowledge that defendant had ever committed any illegal activity on the premises. Therefore, defense counsel abandoned the drug-dealer theory. In light of the compelling evidence against defendant, defendant has failed to rebut the strong presumption that his trial counsel’s chosen strategy was effective. Based on the hotel’s surveillance footage, defense counsel was put in the difficult position of explaining why defendant—who was not a guest at the hotel—spent several hours there during the middle of the night, wandering around with a cell phone pressed to his ear. In light of the surveillance footage from the restaurant, which showed defendant closely associating with a man who is openly smoking something that appears to be marijuana, and also showed numerous people approach defendant throughout the evening, it could be plausibly argued that defendant’s conduct was consistent with that of a drug dealer, and this activity would also explain defendant’s presence at the hotel. Under the circumstances, a competent trial attorney might well decide to take that approach to explain defendant’s overnight presence at the hotel—despite the negative character inferences that the jury might draw. We will not second-guess this strategy with the benefit of hindsight. 3. FAILURE TO REQUEST AN INSTRUCTION ON A NECESSARILY INCLUDED LESSER OFFENSE Defendant argues that trial counsel performed ineffectively by failing to request an instruction regarding misdemeanor entering without permission, MCL 750.115, which is a lesser included offense of felony home invasion.7 We are unpersuaded. At the Ginther hearing, counsel explained that his strategy had been to focus the defense on the CSC charges and on his client’s actual innocence—i.e., on the fact that defendant denied ever having been in the victim’s hotel room in the first instance. In light of the defense theory of the case, counsel’s failure to request a lesser-offense instruction was a reasonable strategy. Had the jury been instructed regarding misdemeanor entering without permission as a lesser included lesser offense of first-degree home invasion, to argue effectively in favor of that lesser charge, defense counsel would have been forced to concede that defendant did, in fact, enter the victim’s room. Given that the evidence at trial provided no noncriminal motive for defendant to enter the victim’s room, it was altogether reasonable for counsel to focus the defense on disputing that defendant had entered the victim’s room at all. Moreover, counsel might have reasonably decided 7 Misdemeanor entering without permission is a lesser included offense of first-degree home invasion. People v Wilder, 485 Mich. 35 , 41; 780 NW2d 265 (2010); People v Silver, 466 Mich. 386 , 392; 646 NW2d 150 (2002). -8- that it was better to force the prosecution to prove the elements of first-degree home invasion beyond a reasonable doubt—or face acquittal on that charge—rather than affording the jury the opportunity to convict defendant of a lesser charge if it was unconvinced concerning first-degree home invasion. In any event, defendant’s instant claim of ineffective assistance is fatally flawed because he has failed to establish a reasonable probability of a different outcome but for counsel’s failure to request the disputed instruction. Jurors are presumed to follow their instructions, People v Graves, 458 Mich. 476 , 486-487; 581 NW2d 229 (1998), and in this case, after the jury was instructed concerning the elements of the charged offenses and the prosecution’s burden of proof, it found defendant guilty of first-degree home invasion, CSC-I, and CSC-III. Defendant has presented no record evidence demonstrating a reasonable probability that the jury would instead have found him guilty of misdemeanor entry without permission had it been given that option. 4. FAILURE TO MOVE FOR A DIRECTED VERDICT AS TO CSC-III Defendant argues that trial counsel performed ineffectively by failing to move for a directed verdict with regard to the CSC-III charge. However, defendant acknowledges that the trial court vacated his conviction of CSC-III at sentencing. Therefore, defendant’s instant claim of ineffective assistance of counsel necessarily fails. He cannot demonstrate that he suffered any prejudice as a result of his counsel’s failure to move for a directed verdict concerning CSC-III. 5. FAILURE TO INVESTIGATE CELL PHONE RECORDS At the Ginther hearing, defendant’s trial counsel testified that either before or during defendant’s second trial, defendant’s sister informed counsel that defendant had a second cell phone that was registered under an alias. Counsel “delved into it” and spoke with defendant about the matter, and defendant indicated that he had used the cell phone in question to make calls from the hotel on the evening of the victim’s assault. But defendant “was unable to provide [counsel] with phone numbers . . . or contact numbers” for the people with whom he claimed that he had spoken on the evening of the offense. On appeal, defendant argues that trial counsel performed ineffectively by failing to investigate the cell phone records. However, assuming, without deciding, that counsel should have investigated them, defendant nevertheless is not entitled to relief here. Defendant concedes that the disputed records “have now been purged and there is no way of determining what they would have established.” In other words, defendant admittedly has no way of demonstrating that counsel’s further investigation into the cell phone records would have yielded any favorable evidence. Therefore, defendant cannot carry his burden of demonstrating a reasonable probability that, but for counsel’s allegedly deficient performance in this respect, the result of his trial would have been different. -9-  B. JURY SELECTION Defendant argues that the trial court plainly erred8 by placing an “arbitrary time restriction” on jury voir dire and failing to sua sponte take steps to ensure that the pretrial publicity had not infected the jury pool with bias. Defendant relies on People v Tyburski, 445 Mich. 606 , 631; 518 NW2d 441 (1994) (opinion of MALLETT, J.) (“A juror’s self-assessment of bias should not be accepted without first eliciting information concerning the content and extent of the juror’s exposure to publicity so that the court can make its own determination of the juror’s impartiality. While it is within the trial court’s discretion to select the method for eliciting such information, it is an abuse of discretion to abdicate this responsibility.”), and People v Jendrzejewski, 455 Mich. 495 , 509; 566 NW2d 530 (1997) (“[W]here there is extensive pretrial publicity, jurors should be adequately questioned so that challenges for cause and preemptory challenges can be intelligently exercised.”). There is no plain error justifying reversal. To begin with, while contending that the trial court imposed “arbitrary” time limits on jury voir dire, defendant presents no record evidence indicating what time limits, exactly, were imposed. Rather, defendant merely notes that at one point, the trial court asked whether the prosecution would like “a five-minute warning,” and later, when the defense was questioning a prospective juror, the court interjected briefly, stating: “Five minutes.” However, the record indicates that jury selection in this case lasted approximately 2 hours and 45 minutes. Moreover, the members of the venire were repeatedly asked about their exposure to pretrial publicity. Hence, we detect nothing plainly erroneous about the temporal scope of the voir dire that was conducted below. Furthermore, as defendant acknowledges, only six members of the venire reported any exposure to pretrial publicity, with just two of them indicating that exposure to such publicity had biased them one way or the other. And only one juror with any degree of exposure to pretrial publicity—Juror #1—was seated on the jury for trial. This is a far cry from the level of pretrial publicity that was at issue in Tyburski, 445 Mich. at 612 n 1, where “[a]ll but two of the thirty- seven potential jurors . . . acknowledged exposure to the media coverage,” and “[o]f the twelve jurors who decided the case, all but one acknowledged such exposure.” Rather, the pretrial publicity at issue here resembles the less sweeping media coverage that was at issue in Jendrzejewski, 455 Mich. at 503 (“The record reveals that while there was some limited television and radio coverage identifying the crime, the victims, and the defendant, the jury voir dire established that very few jurors had any discernable recall of what they had seen or heard on these broadcasts.”). This militates against a finding of plain error here. See id. at 508-510; People v Sawyer, 215 Mich. App. 183 , 190; 545 NW2d 6 (1996) (“While understanding Tyburski to impose an additional measure of caution upon the trial court in all cases potentially infected by pretrial publicity, to whatever degree, we are not persuaded by the record that the instant case more greatly resembles Tyburski than it does a normal criminal case in terms of the prophylactic measures that need to be undertaken by the court. . . . In the instant case, a far lower percentage of prospective 8 Because defendant did not object to the jury-selection process before the selected jury was empaneled and sworn, his instant claim of error is unpreserved and subject to plain-error review. See People v Taylor, 275 Mich. App. 177 , 184; 737 NW2d 790 (2007). -10- and actual jurors acknowledged similar exposure [to pretrial publicity].”). In addition, “contrary to defendant’s assertion, there is no right to any specific procedure for engaging in voir dire. There is simply a right to a jury whose fairness and impartiality are assured by procedures generally within the discretion of the trial court.” Sawyer, 215 Mich. App. at 191 , discussing Tyburski, 445 Mich. at 619 . Defendant takes issue with the manner in which the trial court conducted jury selection, but he presents no record evidence indicating that the seated jurors were actually biased as a result of their exposure to pretrial publicity. On the contrary, the record evidence establishes that Juror #1 reported no meaningful recall of the pretrial publicity. In the end, defendant merely speculates that other jurors might have been biased or might have been exposed to more pretrial publicity than they admitted. Consequently, defendant is not entitled to appellate relief under the plain-error test. He has failed to carry his burden of demonstrating that the trial court’s purported plain error was outcome-determinative or that it resulted in an unfair trial before a jury that had been tainted by pretrial publicity. C. HEARSAY Defendant argues that the trial court abused its discretion by admitting testimony concerning penetration—given by the victim at the preliminary examination—as substantive evidence during the second trial.9 Specifically, defendant argues that such testimony constituted hearsay that was inadmissible under the “declarant unavailable” exception set forth by MRE 804(b)(1). Because defendant raised no hearsay objection below—raising only a general objection that the disputed testimony seemed “improper”—this issue is unpreserved, and we review it for plain error. See People v Aldrich, 246 Mich. App. 101 , 113; 631 NW2d 67 (2001) (“To preserve an evidentiary issue for review, a party opposing the admission of evidence must object at trial and specify the same ground for objection that it asserts on appeal.”). We find no error. In pertinent part, MRE 804 provides: (a) Definition of Unavailability. “Unavailability as a witness” includes situations in which the declarant— 9 Defendant also contends that the trial court erroneously admitted the victim’s testimony from defendant’s first trial as substantive evidence at the second trial. This claim of error is belied by the record. The victim’s actual statements at the first trial were not admitted into evidence at the second trial; rather, she was merely asked whether she had remembered defendant penetrating her at that time and given testimony to that effect. Hence, no hearsay from the first trial was introduced. See MRE 801(a) (“A ‘statement’ is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.”); MRE 801(c) (“ ‘Hearsay’ is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”); People v Jones (On Rehearing After Remand), 228 Mich. App. 191 , 207; 579 NW2d 82 (1998), mod in part on other grounds 458 Mich. 862 (1998) (rejecting the “implied assertion” hearsay theory, under which words need not contain an express assertion to qualify as an assertive “statement” for hearsay purposes). -11-  * * * (3) has a lack of memory of the subject matter of the declarant’s statement[.] * * * (b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former Testimony. Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Similarly, MCL 768.26 provides: Testimony taken at an examination, preliminary hearing, or at a former trial of the case, or taken by deposition at the instance of the defendant, may be used by the prosecution whenever the witness giving such testimony can not, for any reason, be produced at the trial, or whenever the witness has, since giving such testimony become insane or otherwise mentally incapacitated to testify. As defendant acknowledges, there is a great deal of caselaw—both binding and persuasive—that supports the proposition that a witness is “unavailable” for purposes of MRE 804(b)(1) if that witness gave sworn testimony at a former hearing and, at the time of trial, he or she no longer remembers the subject matter of such testimony. See, e.g., People v Farquharson, 274 Mich. App. 268 , 276-277; 731 NW2d 797 (2007); People v Chavies, 234 Mich. App. 274 , 284; 593 NW2d 655 (1999), overruled in part on other grounds by People v Williams, 475 Mich. 245 (2006); People v Williams, 117 Mich. App. 505 , 510; 324 NW2d 70 (1982); People v Patton, 66 Mich. App. 118 , 121; 238 NW2d 545 (1975) (holding that lack of memory is sufficient for admissibility under MCL 768.26). Moreover, if the declarant is actually “present at trial and subject to unrestricted cross-examination,” no Confrontation Clause concerns arise out of the introduction of the declarant’s former testimony. United States v Owens, 484 U.S. 554 , 560; 108 S Ct 838; 98 L. Ed. 2d 951 (1988). Defendant does not contend that the trial court clearly erred when it tacitly found that the victim could not, at trial, recall the subject matter of her former testimony concerning penetration. Thus, we find no plain error in the trial court’s determination that she was an “unavailable” witness for purposes of MRE 804(b)(1). Nor do we perceive any plain error in the trial court’s determination that the victim’s former testimony concerning penetration was substantively admissible under MRE 804(b)(1). At the preliminary examination, defense counsel was afforded an ample opportunity to cross-examine the victim concerning her testimony that she had woken up in her hotel room with an unknown man on top of her, whose “penis” had been “inside” of her “genital opening.” And given that defendant’s felony information had given him notice that he was charged with CSC-I for having penetrated the victim during circumstances involving the commission of first-degree home invasion, the defense certainly had a “similar motive” to develop the victim’s testimony concerning penetration at the preliminary examination. See Farquharson, 274 Mich. App. at 278 . -12- Thus, we conclude that the trial court committed no plain error by admitting the victim’s disputed former testimony under MRE 804(b)(1).10 D. JURY INSTRUCTIONS Defendant argues that the trial court erroneously instructed the jury on several points. Although we agree that some of the trial court’s modifications to the model jury instructions were ill-advised, we find no plain error warranting reversal. To preserve claims of instructional error like those at issue here, a defendant must object to the provided instructions before the jury retires to deliberate. See People v Gonzalez, 256 Mich App 212, 225; 663 NW2d 499 (2003); People v Sabin (On Second Remand), 242 Mich. App. 656 , 657; 620 NW2d 19 (2000). Before the jury deliberated, defense counsel specifically objected to the prosecution’s proposed instruction that the labia majora represents the beginning of the female “genital opening” for purposes of CSC-I. Hence, defendant’s related claim of instructional error is preserved. However, defendant raised no other timely objections to the jury instructions provided below. Thus, his other claims of instructional error are unpreserved and reviewed for plain error affecting his substantial rights. See People v Knapp, 244 Mich. App. 361 , 375; 624 NW2d 227 (2001). Over defendant’s objection, the trial court instructed the jury that for purposes of both CSC- I and CSC-III, the phrase “genital opening” “includes the inside of the labia majora.” Defendant argues that this instruction was erroneous. We disagree. For these purposes, “sexual penetration” is statutorily defined, in pertinent part, as “sexual intercourse . . . or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body, but emission of semen is not required.” MCL 750.520a (emphasis added). Hence, “any intrusion, however slight, into the vagina or the labia majora” constitutes sexual penetration for purposes of CSC-I. Lockett, 295 Mich. App. at 188 , citing People v Whitfield, 425 Mich. 116 , 135 n 20; 388 NW2d 206 (1986). Because it is well-established that “[t]he labia are included in the ‘genital openings’ of the female,” People v Legg, 197 Mich. App. 131 , 133; 494 NW2d 797 (1992), defendant’s instant claim of instructional error is unfounded. With regard to the first-degree home invasion charge, defendant argues that the trial court erroneously instructed the jury concerning the intent element. Specifically, defendant notes that the trial court instructed that when defendant entered the victim’s hotel room, it must have been “his intent to commit a felony or an assault,” whereas defendant’s felony information indicated that defendant was charged with first-degree home invasion for having actually committed CSC-I or CSC-III against the victim while he was in her hotel room, not for merely having entered 10 Moreover, in light of the DNA evidence against defendant and the nurse-examiner’s testimony concerning the victim’s statements describing penetration during her rape-kit examination (the admissibility of which defendant does not contest), defendant cannot carry his burden of demonstrating that the alleged hearsay error was outcome-determinative. -13- intending to do so.11 We perceive no plain instructional error warranting reversal. “Grounded in a defendant’s constitutional right of due process of law is the principle that an accused shall not be called upon to defend himself against a charge of which he was not sufficiently apprised.” People v Higuera, 244 Mich. App. 429 , 442; 625 NW2d 444 (2001) (quotation marks, citations, and brackets omitted). Moreover, MCL 767.45(1) provides that a criminal information “shall contain,” among other things, “[t]he nature of the offense stated in language which will fairly apprise the accused and the court of the offense charged.” However, as explained in People v Stricklin, 162 Mich. App. 623 , 633; 413 NW2d 457 (1987), under MCL 767.76, [a]n information may be amended at any time before, during, or after trial to cure any defect, imperfection, or omission in form or substance, including a variance between the information and the proofs, as long as the accused is not prejudiced by the amendment and the amendment does not charge a new crime. Accord Higuera, 244 Mich. App. at 444 . A defendant is prejudiced by amendment of the information “when the defendant does not admit guilt and is not given a chance to defend against the crime.” Stricklin, 162 Mich. App. at 633 . In this instance, to the extent that the trial court instructed the jury regarding first-degree home invasion under a theory that was not specified in the felony information, defendant cannot demonstrate any prejudice to his substantial rights on that basis. Because the jury found defendant guilty of having actually committed CSC-I, defendant cannot demonstrate that he would have been acquitted of first-degree home invasion had the trial court given the instruction that he now claims it should have. Furthermore, if defendant had objected and called this instructional matter to the trial court’s attention, the court could have cured its purported mistake by simply permitting the prosecution to amend the felony information accordingly. In particular, because the original felony information specifically cited MCL 750.110a(2) in support of the first-degree home invasion charge, defendant was afforded sufficient notice of the charge against him and its elements to be able to defend against it. See Higuera, 244 Mich. App. at 447 ; People v Covington, 132 Mich. App. 79 , 86; 346 NW2d 903 (1984) (“A defendant is not prejudiced by an amendment to the information to cure a defect in the offense charged where the original information was sufficient to inform the defendant and the court of the nature of the charge.”). Because defendant suffered no prejudice from the court’s alleged instructional error concerning first-degree home invasion, we reject his claim of error under the Carines test. Defendant next contends that the trial court plainly erred by adding certain words to M 11 Under MCL 750.110a(2), a person commits the crime of first-degree home invasion by “break[ing] and enter[ing] a dwelling with intent to commit a felony, larceny, or assault in the dwelling, . . . enter[ing] a dwelling without permission with intent to commit a felony, larceny, or assault in the dwelling, or . . . break[ing] and enter[ing] a dwelling or enter[ing] a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a felony, larceny, or assault . . . .” [Emphasis added.] -14- Crim JI 5.2—including the phrase “or not”—as follows: And you should not decide this case based on which side presented more evidence or more witnesses. Instead, you should think about each witness and each piece of evidence and whether you believe them. And then you must decide whether the testimony and the evidence that you believe prove beyond a reasonable doubt that the defendant is guilty or not. [Emphasis added.] We agree with defendant that the trial court erred, and did so plainly, by altering the wording of M Crim JI 5.2. “A criminal defendant is entitled to have a properly instructed jury consider the evidence against him.” People v Riddle, 467 Mich. 116 , 124; 649 NW2d 30 (2002). “Further, MCR 2.512(D)(2) requires that the jury be instructed using the Michigan Model Criminal Jury Instructions if ‘(a) they are applicable, (b) they accurately state the applicable law, and (c) they are requested by a party.’ ” People v Rosa, 322 Mich. App. 726 , 739; 913 NW2d 392 (2018). By adding the phrase “or not” where it did in M Crim JI 5.2, the trial court inadvertently suggested that the jury was charged with deciding whether it had been proven beyond a reasonable doubt that defendant was—or was not—guilty. That suggestion is fundamentally incompatible with the presumption of innocence. See People v Beck, ___ Mich ___, ___; ___ NW2d ___ (2019) (Docket No. 152934), cert pending; slip op at 13 (“A defendant is entitled to a presumption of innocence as to all charged conduct until proven guilty beyond a reasonable doubt, and that presumption is supposed to do meaningful constitutional work as long as it applies. At least that’s what we tell the accused and the jury about how it works.”) (footnotes omitted). Rather than ad-libbing, the trial court should have read M Crim JI 5.2 to the jury as it is written. Even so, we conclude that defendant’s instant claim of instructional error fails under the third prong of the Carines test. “When this Court reviews jury instructions for reversible error, we consider the instructions as a whole,” People v Richardson, 490 Mich. 115 , 119; 803 NW2d 302 (2011), and “an imperfect instruction is not grounds for setting aside a conviction if the instruction fairly presented the issues to be tried and adequately protected the defendant’s rights,” People v Kowalski, 489 Mich. 488 , 501-502; 803 NW2d 200 (2011). Moreover, the trial court instructed the jury that defendant was presumed to be innocent and that “this presumption continue[d] throughout the trial and entitle[d] the defendant to a verdict of not guilty unless or until [the jury was] satisfied beyond a reasonable doubt that he [wa]s guilty.” Viewing the instructions cumulatively, they were sufficient to safeguard defendant’s presumption of innocence. Hence, defendant has failed to demonstrate that this instructional error prejudiced his substantial rights. Defendant’s final claim of instructional error regards the model instruction concerning circumstantial evidence, M Crim JI 4.3. He argues that the trial court plainly erred by altering the language of M Crim JI 4.3 as follows: But facts can also be proven by indirect or what we call circumstantial evidence. And circumstantial evidence is simply evidence that normally or reasonably leads to certain inevitable conclusions. So, for example, maybe you don’t actually see it raining outside but you see someone walk in the courtroom wearing a raincoat carrying an umbrella covered with small drops of water. Well, that is circumstantial evidence that it’s raining outside. -15-  And you may consider circumstantial evidence. There’s nothing wrong with it. Circumstantial evidence by itself, or together with direct evidence can be used to prove a crime. [Emphasis added.] To the extent that defendant complains about the trial court’s comment that there is “nothing wrong with” circumstantial evidence, we find his argument meritless. The trial court stated the law correctly. There is, in fact, nothing wrong with circumstantial evidence. See People v Hardiman, 466 Mich. 417 , 429 n 7; 646 NW2d 158 (2002) (“circumstantial evidence is oftentimes stronger and more satisfactory than direct evidence”) (quotation marks and citation omitted). We agree that the trial court plainly erred by changing the language of M Crim JI 4.3(3) to define circumstantial evidence as evidence “that normally or reasonably leads to certain inevitable conclusions.” We are aware of no authority supporting the proposition that circumstantial evidence is evidence that normally or reasonably leads to “inevitable conclusions.” Indeed, such a definition of circumstantial evidence would seem to be far too restrictive. Circumstantial evidence has been broadly defined as “[e]vidence based on inference and not on personal knowledge or observation” or “[a]ll evidence that is not given by eyewitness testimony.” Black’s Law Dictionary (11th ed 2019). However, viewing this instruction in the context of the instructions as a cohesive whole, defendant cannot demonstrate any prejudice from the trial court’s error. Given that the trial court properly instructed the jury with the classic raincoat-and-umbrella example of circumstantial evidence, the jury was fairly instructed on the subject. That commonsense example was sufficient to properly explain the concept of circumstantial evidence to the jurors. And in any event, in light of the strong nature of the direct and circumstantial proofs against defendant, he cannot demonstrate that any of the alleged instructional errors were outcome- determinative. E. REMOVAL OF A SEATED JUROR Defendant argues that the trial court abused its discretion by discharging Juror #12—who was one of two African-Americans on the seated jury—for purportedly attempting to have out-of- court contact with the prosecution. We disagree. On the sixth day of trial, the prosecution informed the trial court that, during a recess, “Juror #12” had gotten onto an upward-bound elevator with two victim advocates, followed them to the Prosecutor’s Office, and tried to gain entry to that office through a “private entrance.” The trial court summoned Juror #12 before the court and questioned him about the matter in the following exchange: Q. Um, . . . I’ve received some information, . . . that . . . causes me to pull you out and ask you some questions about, um, your actions after we took our lunch break. Um, you apparently found yourself going up to the 11th floor, the Prosecutor’s Office. A. No. I was trying to—uh, I couldn’t catch an elevator so I—what I was trying to do was go up and then the stairs, but I couldn’t. It wasn’t no stairs so I -16- had to get back on the elevator. * * * Q. When you got off the elevator where did you go? A. When I got off the ele—when I got off the elevator on the 11th floor. Q. Why did you ride up to the 11th floor[?] A. Because I was tryna, tryna [sic] find another to elevator go down. Q. Well, that elevator would go down eventually, wouldn’t it? A. I mean I couldn’t catch one because everybody—it was full, so I was just— Q. Well, the one you were on would’ve gone down. A. Yeah. I, I tried to walk down the stairs. That’s why. Q. You got off the elevator on the 11th floor in order to get an elevator to go down; is that what you’re saying? A. I was tryna [sic] take the stairs, so. Q. Why would you wanna walk down 11th flights [sic] if you could of— A. I— Q. —just stayed on the elevator? A. Yeah, I— Q. You can’t explain that. A. Yeah, I was just rushing. Q. Well, when you got off the elevator then where did you go? A. When I got off the elevator, I went back down, uh, first floor. Q. Before you went down, where did you go when you got off the elevator? A. I tried to look for the stairs to go back downstairs, but I didn’t see no stairs to go walk, go downstairs, so I— * * * -17-  Q. Did you follow some people to a door[?] A. It’s I mean I thought it was the stairs to go back downstairs, but they, you know, told me I had to go back that way. So I, I went with the intention of looking for the stairs. So I got back on the elevator and went down. So it was just a miss, you know. Q. Well, did you realize you were in the Prosecutor’s Office when you got off the elevator? A. Oh, no. No. Q. Um, there are a few people involved in this case who said you followed them to a private entrance into the Prosecutor’s Office and tried to get through that entrance. A. No, I mean because I though[t] it was—that was way for the, the stairs. I didn’t know it was the Prosecutor’s Office. Q. And you didn’t know who you were following? A. No, I was trying to take—find the stairs. Q. I know what you were trying to do. My question to you was did you not know who you were following to the doorway? A. No, I wasn’t tryna follow no—I wasn’t tryna [sic] follow nobody, your Honor. Q. Well there were some people ahead of you, right? A. Yeah, it was people ahead of me. Q. You thought they were going to a stairway? A. Yeah. I thought, I though[t] the stairway to go back downstairs was that way, so. * * * Q. Um, did you talk to any of the other jurors about your misadventure upstairs on the 11th floor? A. No. Thereafter, one victim advocate testified that during the incident in question, she had specifically held the door of a downward-bound elevator for Juror #12, but he had not entered it -18- despite the fact that there had been space for him. Instead, he had waited and followed her and another victim advocate from the trial onto an “up” elevator. He subsequently followed them off of that elevator and followed the victim advocate to a locked entry into the prosecutor’s office, which she opened with a key. Juror #12 “came up behind” the victim advocate and she opened the door and stepped through, then quickly shut the door behind her to deny Juror #12 entry. Likewise, the other victim advocate testified that Juror #12 “had two opportunities to get on the elevator, whether it was up . . . or down,” but he had instead waited and gotten onto an elevator with the two victim advocates, seemingly as if he specifically wanted to board the same elevator. After hearing this testimony, the trial court removed Juror #12 over defendant’s continued objection. As a result, the number of seated jurors was reduced from 14 to 13. The trial court reasoned that the situation was “bizarre,” noted that it was troubled that Juror #12 had provided an “implausible explanation” for his actions, and observed that there seemed to be “something wrong with him” that rendered him “unfit to sit through th[e] trial.” Defendant argues that the trial court abused its discretion by so ruling. In light of the trial court’s credibility determinations, we disagree. In pertinent part, MCL 768.18 provides: Should any condition arise during the trial of the cause which in the opinion of the trial court justifies the excusal of any of the jurors so impaneled from further service, he may do so and the trial shall proceed, unless the number of jurors be reduced to less than 12. “[I]f resolution of a disputed factual question turns on the credibility of witnesses or the weight of the evidence, we will defer to the trial court, which had a superior opportunity to evaluate these matters.” People v Sexton, 461 Mich. 746 , 752; 609 NW2d 822 (2000) (quotation marks and citation omitted). See also People v Schepps, 231 Mich. 260 , 269; 203 N.W. 882 (1925) (noting that because trial judges are, in situations such as these, personally able to observe a juror’s “appearance and attitude, tone of voice, and manner of testifying,” they are best situated to determine whether a juror remains competent to serve). In this instance, the trial court found that Juror #12 had engaged in “bizarre” behavior and had either intentionally lied to the court about his motivations or was unable to explain himself as a result of some sort of disability or general incompetence. We see no basis to disturb those factual findings, and in light of them, we conclude that the trial court’s decision to remove Juror #12 fell well within the range of reasonable and principled outcomes. F. JUDICIAL COMMENTS Defendant argues that the trial court made certain comments in the presence of the jury that pierced the veil of judicial impartiality, thereby depriving him of his due process right to a fair trial. Defendant admittedly raised no objection to the judicial comments about which he now complains on appeal. Therefore, this issue is unpreserved and our review is limited to plain error affecting defendant’s substantial rights. People v Jackson, 292 Mich. App. 583 , 597; 808 NW2d 541 (2011). We find no plain error warranting reversal. -19-  On the fourth day of trial, while the defense was cross-examining the hotel’s general manager about ladders that are stored outside on the hotel property, the following exchange occurred: Q. You have ladders hanging out in, in the back lot of the, the hotel, right? A. We, we had a ladder by the shed, correct. * * * Q. Right. You, you still have it there, right? A. I believe so Q. Okay. And you have a ladder on the ground next to the shed? A. I, I believe it, it may still be there if it’s in use. I’m not exactly certain if it’s there at this moment right now. . . . * * * Q. Okay. So you don’t know if it’s locked or unlocked, if it’s there or not, right? A. I know that if it’s being used, it’s accessible and if it’s not being used, it’s not. Q. Okay. Well, I’m gonna [sic] show you some— One of the trial prosecutors interjected, stating that he could see that defense counsel was intending to show the witness pictures that had been taken at the hotel “a couple of days” earlier. The prosecutor seemingly began to argue that the photos were not relevant, but the trial court interrupted, leading to the following exchange: THE COURT: What difference does it make whether there’s a ladder out in the back of the hotel? I mean what is it supposed to show, your client’s innocence or something? [DEFENSE COUNSEL]: Yes, Judge. THE COURT: Really? [DEFENSE COUNSEL]: I have— THE COURT: How. [DEFENSE COUNSEL]: —no further questions, Judge. -20-  THE COURT: All right. Defendant argues that the trial court’s comments pierced the veil of judicial impartiality. “A defendant claiming judicial bias must overcome a heavy presumption of judicial impartiality.” Jackson, 292 Mich. App. at 598 (quotation marks and citation omitted). “Judicial misconduct may come in myriad forms, including belittling of counsel, inappropriate questioning of witnesses, providing improper strategic advice to a particular side, biased commentary in front of the jury, or a variety of other inappropriate actions.” People v Stevens, 498 Mich. 162 , 172-173; 869 NW2d 233 (2015). “A trial judge’s conduct deprives a party of a fair trial if a trial judge’s conduct pierces the veil of judicial impartiality,” and this occurs “when, considering the totality of the circumstances, it is reasonably likely that the judge’s conduct improperly influenced the jury by creating the appearance of advocacy or partiality against a party.” Id. at 170. In evaluating the totality of the circumstances, the reviewing court should inquire into a variety of factors, including the nature of the judicial conduct, the tone and demeanor of the trial judge, the scope of the judicial conduct in the context of the length and complexity of the trial and issues therein, the extent to which the judge’s conduct was directed at one side more than the other, and the presence of any curative instructions. . . . Reviewing courts may consider additional factors if they are relevant to the determination of partiality in a particular case. [Id. at 172.] This “fact-specific” inquiry must be examined on a case-by-case basis. Id. at 171. “A single inappropriate act does not necessarily give the appearance of advocacy or partiality, but a single instance of misconduct may be so egregious that it pierces the veil of impartiality.” Id. Viewed within the totality of the circumstances, the trial court’s disputed remarks were not so egregious as to pierce the veil of judicial impartiality. The judicial comments in question spanned one brief moment of a seven-day jury trial, and after a thorough review of the transcripts, we conclude that the trial court’s overall tone and demeanor toward the parties at trial was evenhanded. Moreover, any perceived prejudice to defendant from the trial court’s brief remarks was dissipated when the trial court subsequently instructed the jury that it was to decide the case based solely on the evidence, that the court’s “comments, rulings, [and] questions” were not evidence, that such comments were not intended to convey the court’s “personal opinion about the case,” and that if the jurors believed that the court had such an opinion, they should “pay no attention to that opinion.” Hence, we reject defendant’s contention that the court’s disputed comments constituted outcome-determinative plain error. G. CONSECUTIVE SENTENCING Next, defendant argues that the trial court abused its discretion by imposing consecutive sentences without stating any reasoning in support of that decision on the record. We agree. “In Michigan, concurrent sentencing is the norm, and a consecutive sentence may be imposed only if specifically authorized by statute.” People v Ryan, 295 Mich. App. 388 , 401; 819 NW2d 55 (2012) (quotation marks and citation omitted). In this case, the trial court was authorized -21- by the first-degree home invasion statute and the CSC-I statute to impose consecutive sentences. MCL 750.110a(8); MCL 750.520b(3). “[T]rial courts imposing one or more discretionary consecutive sentences are required to articulate on the record the reasons for each consecutive sentence imposed.” Norfleet, 317 Mich App at 654; see also People v Broden, 428 Mich. 343 , 350-351; 408 NW2d 789 (1987) where our Supreme Court articulated: In order to aid the appellate review process in determining whether there has been an abuse of discretion, . . . the trial court must, at the time of sentencing, articulate on the record its reasons for imposing the sentence given. A silent record precludes the appellate court from determining whether the trial court considered impermissible factors or whether an ostensibly harsh or disparate sentence is justified by permissible considerations. The articulation-of-reasons requirement further acts as a safeguard against rash and arbitrary decisions by forcing the sentencing judge to focus on relevant factors, and it also reduces the risk that inaccurate information will be considered. On appeal, defendant contends that at both sentencing and the Ginther hearing, the trial court steadfastly refused to explain why it had imposed consecutive sentences. When announcing its ruling at sentencing, the trial court explained: Well, I’m gonna exercise my discretion in favor of consecutive sentencing in this case. I think it’s appropriate. * * * Actually home invasion here I could—I have the discretion to sentence him to life because it’s a 20 year offense and he was convicted as a habitual fourth offender, but I’m going to in the exercise of my discretion sentence the defendant to a term of years on the home invasion. When imposing consecutive sentences, a trial court is required to articulate the reasoning for each consecutive sentence imposed. Specifically, it is required to “give particularized reasons – with reference to the specific offenses and the defendant.” Norfleet, 317 Mich. App. at 666 . We conclude that the trial court here spoke only generally, and did not provide the requisite particularized reasoning for its imposition of consecutive sentences. Thus, we conclude that a “[r]emand is . . . necessary so that the trial court can fully articulate its rationale for each consecutive sentence imposed.” Id. IV. CONCLUSION We affirm defendant’s convictions, but remand for further sentencing proceedings consistent with this opinion. We retain jurisdiction. /s/ Kathleen Jansen /s/ Cynthia Diane Stephens -22-  Court of Appeals, State of Michigan ORDER Michael J. Riordan PEOPLE of MI v DWUAN TAMAUL PARKMAN Presiding Judge Docket No. 340943 Kathleen Jansen LC No. 16-006766-01-FC Cynthia D. Stephens Judges Pursuant to the opinion issued concurrently with this order, this case is REMANDED to the trial court to articulate, on the record, specific findings for the trial court’s imposition of consecutive sentences pursuant to People v Norfleet, 317 Mich. App. 649 , 654; 897 NW2d 195 (2016). We retain jurisdiction. Proceedings on remand in this matter shall commence within 56 days of the Clerk’s certification of this order, and they shall be given priority on remand until they are concluded. The proceedings on remand are limited to this issue. The parties shall promptly file with this Court a copy of all papers filed on remand. Within seven days after entry, appellant shall file with this Court copies of all orders entered on remand. The transcript of all proceedings on remand shall be prepared and filed within 21 days after completion of the proceedings. /s/ Michael J. Riordan Riordan, P.J., dissents as the trial court adequately explained its rationale for imposing consecutive sentences. June 4, 2020

2020-01-17 22:01:47.641849+00

Marquette

*1010OPINION. Marquette: The petitioner’s right to value its closing inventory for the fiscal year 1920, upon the basis of cost or market, whichever *1011is lower, in accordance with the provisions .of Treasury Decision 3108, does not appear to be disputed by the respondent, though if it were, we should not hestitate to say that upon the facts presented the respondent could not successfully challenge that right. Cf. J. W. and A. P. Howard Co., 15 B. T. A. 1096. The issue necessitates only a decision as to the value of the closing inventory, upon the basis of cost or market, whichever is lower. As to that, the evidence submitted by the petitioner is complete and convincing, and it has enabled us to find that such value is $2,215,704.68. The revision of the inventory valuation to the cost or market basis was accomplished by petitioner’s officers in collaboration with the revenue agent who examined the books for the years in question. More than four months were taken up by the work of this revision. Every effort was made, which could reasonably be expected to be made, to secure complete and authentic data as to market conditions, and the entire work of revision was carried on in a sincere effort to reach a result that would meet the requirements of respondent’s regulations. Three witnesses who have been in the petitioner’s employ in executive and managerial capacities for periods of 17 to 34 years, who did the buying and selling for the petitioner, who were in close contact with the markets and knew the conditions of the markets at June 30, 1920, and who actually supervised the revision of the inventory, testified in detail as to the procedure followed and as to the method of pricing the various classes of merchandise in the inventory. Their testimony is corroborated by that of the former revenue agent who worked with them in the revision of the inventory. He testified that he checked and verified all of the inventory figures submitted to him. There are filed with his report to the respondent, as exhibits, copies of about 200 letters from manufacturers from whom the petitioner made its purchases, giving information as to market conditions and quotations, as of the inventory date. These were obtained at his solicitation for the purpose of verifying market prices submitted to him by petitioner’s officers. He testified, also, that during the course of his examination he held a great many conferences with representatives of manufacturers for discussing market conditions, with a view to verifying his own conclusions and those of petitioner’s officers as to the market value of various classes of merchandise in the inventory. In his report to the respondent, he recommended the acceptance of an inventory valuation based upon cost or market, whichever is lower, of $2,215,167.20. The testimony of these witnesses leaves no doubt in our minds that the figure of $2,215,704.08 fairly reflects the value of the inventory in question, upon the basis of cost or market, whichever is lower, *1012and net income should be recomputed upon the basis of a closing inventory of that amount. The only other question is as to the value of the leasehold that the petitioner acquired upon the dissolution of the Manufacturer’s Furniture Exchange. We are satisfied from the evidence presented to us on this issue that the leasehold had a fair market value of $400,000 when the petitioner acquired it. It should, therefore, be included in the petitioner’s invested capital for the fiscal year ended June 30, 1920, in the amount of $400,000, with proper allowances for exhaustion since the date of acquisition. The hearing and determination of the Board was limited in the first instance to issues other than those specified in Rule 62 (b) and (c), and, in view of our determination in respect thereof, the net taxable income of the petitioner will be reduced and its invested capital will be increased. Therefore, the issue as to special assessment may not be longer urged by petitioner. The respondent is therefore directed to file with the Board a computation of the tax liability for the taxable year. If upon the filing and service of such computation, petitioner desires to proceed further under Rule 62 (b) on the issue of abnormalities, and files a motion to that effect, the proceeding will be placed upon the day calendar on the abnormality question; otherwise, judgment will be entered under Rule 50.

2021-03-18 22:08:28.847045+00

https://www.courts.mo.gov/file.jsp?id=175433

STATE OF MISSOURI, ) ) Respondent, ) No. SD36704 ) vs. ) Filed: March 18, 2021 ) JIMMY LEE NICHOLS, ) ) Appellant. ) APPEAL FROM THE CIRCUIT COURT OF DADE COUNTY Honorable Judge David R. Munton AFFIRMED After a jury trial, Jimmy Lee Nichols ("Defendant") appeals his convictions for one count of tampering with a judicial officer, one count of making a terrorist threat in the third degree, and one count of possession of a controlled substance. See §§ 575.095, 574.125, and 579.015.1 Defendant argues the trial court abused its discretion in overruling Defendant's objection to the State's closing argument, which Defendant claims involved improper personalization to the jury. Defendant's argument has not been preserved for our review. The trial court's judgment is affirmed. 1 All statutory citations are to RSMo. (2016).  Analysis Before we can proceed to address the merits of an appeal, we must determine that the allegation of error is preserved for our review. State v. Baker, 551 S.W.3d 68 , 69 (Mo. App. W.D. 2018). In one point relied on Defendant alleges the following: The trial court abused its discretion in overruling defense counsel's objection to the prosecutor's statement in closing argument suggesting to the jury that they would have been intimidated by [Defendant's] behavior because this violated [Defendant's] rights to due process of law and a fair trial, as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10, 18(a), and 22(a) of the Missouri Constitution, in that the prosecutor improperly personalized the matter for the jury by appealing to jurors' sympathy for Ms. Greenwade and encouraging the jurors to consider the personal harm [Defendant] could cause them, and improperly directed the jury to consider an element that was not part of the offense for which [Defendant] was on trial. Without this improper argument, there is a reasonable probability that the jury would have found [Defendant] not guilty. At trial, in Defendant's closing statement, Defendant's counsel argued voicemails left for the prosecutor did not contain "any threats." The State's closing rebuttal contained the following exchange: [State]: Ladies and gentlemen, I understand that the statement was a threat, and I am so glad that it was only a threat. .... [State]: But if you had to endure those messages and know they were towards you and listen to the agitation and the frustration in that voice, I think you would find yourself intimidated. [Defendant's counsel]: I will object to personalizing to the jury. [Court]: Do what? [Defendant's counsel]: Personalizing to the jury, I object. [Court]: Are you completed? [State]: I am. [Court]: All right, I will overrule the objection at this point. The jury was then instructed and left the room to deliberate. A bench conference followed, where this exchange occurred: 2  [Court]: Did you want to make anything in regard to an objection to that last question? [Defendant's counsel]: I should have probably asked you to strike it, but I didn't do that. [Court]: All right, just a couple of things and you all can go hang out or whatever you need to do. Defendant's motion for new trial alleged in pertinent part: 5. The trial [c]ourt erred in failing to instruct the jury to disregard the personalizing statements made by the State at the close of their rebuttal closing wherein counsel for the State asked the jury to put themselves in the shoes of the victim. The court's failure denied Defendant of his right to due process and a fair trial as protected in Article 1, Section 10, 18(a), 19 and 22 of the Missouri Constitution in the Fifth and Fourteenth Amendments to the United States Constitution. (Emphasis added). Our analysis of Defendant's argument necessarily begins with whether it has been properly preserved because this "dictates our standard of review." State v. Davis, 533 S.W.3d 781 , 785 (Mo. App. S.D. 2017). At trial, Defendant objected on the basis of "personalizing to the jury" which was overruled by the trial court. In the motion for new trial, Defendant alleged the trial court erred by "failing to instruct the jury to disregard the personalizing statements[.]" For an allegation of error to be preserved and receive more than plain error review, "it must be objected to during the trial and presented to the trial court in a motion for new trial." State v. Loper, 609 S.W.3d 725 , 733 (Mo. banc 2020) (quoting State v. Walter, 479 S.W.3d 118 , 123 (Mo. banc 2016)); see Rule 29.11.2 "To be preserved for appellate review, the claim in the motion for new trial must be the same as the claim on the appeal." State v. Nickels, 598 S.W.3d 626 , 633 (Mo. App. E.D. 2020) (emphasis added). Allegations of error in a motion for 2 Rule 29.11(d) provides: In jury-tried cases, allegations of error to be preserved for appellate review must be included in a motion for new trial except for questions as to the following: (1) Jurisdiction of the court over the offense charged; (2) Whether the indictment or information states an offense; (3) The sufficiency of the evidence to sustain the conviction. All rule citations are to Missouri Court Rules (2020). 3 new trial may not be altered or broadened on appeal. Davis, 533 S.W.3d at 788 . Defendant argued in his motion for new trial that the trial court erred by not sua sponte instructing the jurors to disregard the personalizing statement. This is not the same allegation of error contained in the point presented on appeal, which alleges the trial court erred by overruling Defendant's objection because the prosecutor "improperly personalized" and "improperly directed the jury to consider an element that was not part of the offense[.]" Defendant's argument has not been preserved.3 Defendant's point is denied. Conclusion The trial court's judgment is affirmed. MARY W. SHEFFIELD, J. – OPINION AUTHOR JEFFREY W. BATES, C.J. – CONCURS GARY W. LYNCH, J. – CONCURS 3 Defendant has not requested plain error review and an appellate court does not engage in plain error review under Rule 30.20 unless the defendant facially establishes substantial grounds for believing the alleged error resulted in a manifest injustice or miscarriage of justice. State v. Brandolese, 601 S.W.3d 519 , 526 (Mo. banc 2020). We decline to engage in plain error review. 4

2011-08-23 09:36:53+00

http://bulk.resource.org/courts.gov/c/F2/746/746.F2d.1484.83-6302.html

746 F.2d 1484 Carter (Sheryl Jones) v. Morgan (Douglas H.) NO. 83-6302 United States Court of Appeals, ninth Circuit. SEP 24, 1984 1 Appeal From: C.D.Cal. 2 AFFIRMED.

2020-12-02 07:14:35.807732+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=16774&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa05%5cOpinion

AFFIRMED; Opinion Filed November 30, 2020 In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00564-CR ARES WENDELL HIATT, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-80604-2018 MEMORANDUM OPINION Before Justices Myers, Nowell, and Evans Opinion by Justice Myers A jury convicted appellant Ares Wendell Hiatt of aggravated sexual assault of a child and the trial court assessed punishment at thirty-three years in prison. In three issues, appellant contends his right to a unanimous jury verdict was violated; the trial court abused its discretion in overruling appellant’s rule 403 objection; and the evidence is insufficient to support the conviction. We affirm. BACKGROUND The complainant’s mother testified that she started dating appellant around June or July of 2014, and that she and her two daughters moved in with him in 1 September of 2014. At the time, the complainant was almost three years’ old. The complainant and her older sister shared bunk beds, but when her older sister went to live with her biological father, the complainant was left alone in the bedroom. In April of 2016, the complainant’s mother took a job at Target and started working overnight, from around 10:00 p.m. to 6:00 a.m. or 10:00 a.m. in the morning. In October of that year, the complainant told her mother appellant had “licked her pee-pee.” That night, the complainant’s mother confronted appellant and told him not to come home. When appellant asked why, the complainant’s mother told him about the complainant’s allegations. Appellant denied the accusations and came home later that night anyway. The complainant’s mother spent the night in the complainant’s room. A few weeks after the outcry, the complainant also told her mother she thought she might have dreamt the sexual abuse. Asked about this on direct examination, the complainant’s mother testified as follows: Q. [STATE:] At one point, did she say that she thought it might have just been a dream? A. A few weeks later. Q. She said that? A. Yeah. Q. And when you heard that she thought it might be a dream, what did you take that as? A. As an excuse. Q. Did you think, okay, maybe there is a possibility that this didn’t happen? –2–  A. I didn’t want to believe it, of course, but I had to believe her. The complainant’s mother arranged for her children to stay with a friend while she worked nights. This went on for a few weeks or perhaps a month, and during that time appellant told the complainant’s mother he had allowed the complainant to watch a pornographic “Princess and the Frog” video, but claimed it was a mistake. According to what appellant told the complainant’s mother, the complainant had wanted to watch a movie, “The Princess and the Frog,” so he searched for it on YouTube. After finding what he thought was the correct video, he handed the tablet to the complainant. Appellant told the complainant’s mother that he immediately switched the video to another cartoon when the complainant brought him the tablet and he noticed it “was a sexual movie.” The complainant testified that the “Princess and the Frog” video showed the princess’s “friend . . . licking her pee-pee.” The complainant said she saw this video only once and that appellant “didn’t mean to” show it to her. She also testified that appellant switched to a “Scooby-Doo” cartoon when she showed him what was on the video. Detective Kristina McClain of the Plano Police Department testified that she searched the internet and found on Pornhub what she believed was the same video appellant had played for the complainant. The video was admitted into evidence and played for the jury. The complainant’s mother testified that about a month after the complainant’s –3– outcry, in November of 2016, she allowed her two children to move back into the house. She said she did this based on a promise from appellant that he would install video cameras to record what was going on in the house. Eventually, however, the complainant’s mother discovered the cameras had stopped recording. Then, around January of 2017, the complainant’s mother found what “looked like modified sex toys in our bedroom,” and they were stored in a bag that she found in a filing cabinet next to appellant’s desk. She recognized two of the sex toys as items she and appellant had used together but did not recognize the “finger-wipe things” or the “female arousal serum” that were found in the bag along with the other sex toys. She took the bag to the police. When confronted about the sex toys, appellant claimed he had used the objects on himself. The complainant recognized some of the items that were found in the bag. A black flashlight, for example, was found in the bag, and the complainant testified appellant would come in her room at night with a black flashlight, take off her pajamas and underpants, and lick her “pee-pee.” And during her forensic interview with Eligio Molina of the Collin County Children’s Advocacy Center, the complainant used a drawing of a girl to identify her “pee-pee” as the part her body “that she uses to pee.” A toy bullet from a Nerf gun that had been cut off at one end was also found in the bag, and the complainant testified that she recognized “the toy bullet dart” because appellant had shown it to her. The complainant testified that the abuse where appellant licked her “pee-pee” –4– happened “[l]ots of times” in her bedroom, and it happened once in her mother’s bedroom. It occurred at night when she slept in the bottom bunk of the bunkbeds she shared with her sister, and it stopped after she and her sister switched bunks. The complainant also remembered telling her mother that the abuse was a dream but testified it was not a dream: Q. [STATE:] And was it a dream or was it not a dream? A. It wasn’t a dream because I—after he did that, I kind of felt myself, and it wasn’t a dream. Q. It wasn’t a dream? A. Yeah. Q. And do you remember being awake or seeing that flashlight sometimes when he would do it to you? A. Yeah. I would peek a little when I was waking, but he didn’t see me because my eyes were a little open. Q. Did you not want him to know that you were awake? A. Yeah. Q. And why didn’t you want him to know? A. Because maybe he would get scared. The complainant could not identify appellant as the person who assaulted her, but she testified that she had not seen appellant in a long time and that she was “a little scared” when she had to look at the table where he was sitting: Q. [STATE:] . . . . Tell me, before today, had it been a really long time before you’d seen [appellant]? A. Yes. –5–  Q. And did it make you a little scared when I asked you to look over at his table? A. Yes. The jury ultimately convicted appellant of aggravated sexual assault of a child, and the trial court assessed punishment at thirty-three years in prison. DISCUSSION 1. State’s Election In his first issue, appellant argues his “right to a unanimous jury was violated because the trial court admitted additional allegations of sexual abuse” that were not included in the indictment. Thus, according to appellant, “the jurors could have relied on any of the multitude of separate similar instances of sexual abuse that the victim testified to during trial and there would be no manner to determine if they all agreed on the same one instance of sexual abuse beyond a reasonable doubt.” As explained by the Court of Criminal Appeals, the general rule is that “[w]hen one particular act of sexual assault is alleged in the indictment, and more than one incident of that same act of sexual assault is shown by the evidence, the State must elect the act upon which it would rely for conviction.” Owings v. State, 541 S.W.3d 144 , 150 (Tex. Crim. App. 2017) (internal quotation omitted). “Once the State rests its case in chief, upon a timely request by the defense, the trial court must order the State to make an election.” Id. There are four fundamental principles or purposes that are served by an election and its accompanying procedures: –6–  • to protect the accused from the introduction of extraneous offenses; • to minimize the risk that the jury might choose to convict, not because one or more crimes were proved beyond a reasonable doubt, but because all of them together convinced the jury the defendant was guilty; • to ensure unanimous verdicts; that is, all of the jurors agreeing that one specific incident, which constituted the offense charged in the indictment, occurred; • and to give the defendant notice of the particular offense the State intends to rely upon for prosecution and afford the defendant an opportunity to defend. Id. (citing Phillips v. State, 193 S.W.3d 904 , 910 (Tex. Crim. App. 2006)). The Court of Criminal Appeals has applied these Phillips factors in conducting a harm analysis when the State made no election at all. See Owings, 541 S.W.3d at 150 –51; Dixon v. State, 201 S.W.3d 731 , 734 (Tex. Crim. App. 2006). Moreover, this Court has held that a trial court’s failure to instruct the jury concerning the State’s election placed a defendant in the same position as though no election had been made, and we applied the Phillips constitutional harm standard. Duffey v. State, 326 S.W.3d 627 , 631–32 (Tex. App.—Dallas 2009, pet. ref’d). Thus, we will reverse the trial court’s judgment unless we determine beyond a reasonable doubt that the error did not contribute to appellant’s conviction. See id. at 632; see also TEX. R. APP. P. 44.2(a). According to the record in this case, after moving for a directed verdict defense counsel requested that the State elect the particular incident on which it would rely. The State announced that “[t]he election we are going to go forward on –7– is, one time, at night, in [the complainant] and [her sister’s] bedroom, in [the complainant’s] bed.” After the State made that election, appellant moved for a mistrial, arguing: The State alleged one event, and, yet, without giving any notice of any kind, they proceeded to bring in evidence about multiple extraneous incidents, in violation of Code of Criminal Procedure 38[.]37, not giving me 30 days[’] notice, in violation of 404(b), by giving me a notice that did not include any extraneous offenses. The trial court denied the motion. Appellant rested without presenting any evidence. The trial court charged the jury as follows: You must not find the defendant guilty of Aggravated Sexual Assault of a Child unless you all agree that the State has proved that the defendant committed that offense one time at night in [the complainant] and [her sister’s] bedroom in [the complainant’s] bed. Any evidence that the defendant may have committed the alleged offense at any other place is not sufficient for you to find him guilty of Aggravated Sexual Assault of a Child. You are instructed that any evidence that the defendant may have committed the alleged offense of Aggravated Sexual Assault of a Child at a place other than one time at night in [the complainant] and [her sister’s] bedroom in [the complainant’s] bed cannot be considered for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed. Even then, you may only consider the same in determining the intent, identity, preparation, plan, or opportunity of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment in this case, and for no other purpose. Defense objected to the charge and requested the State to be more specific about its election and give an age or a time when the offense occurred: The State has elected one time, in the bedroom at night, in [the complainant] and [her sister’s] bedroom, in [the complainant’s] bed. However, in the evidence that we have heard, [the complainant] has –8–  said, first of all, in the forensic video, it happened when she was two. And then later—well, on direct evidence, that she testified to, she said it happened when she was three and four years old. So I would like the State to pick out when this happened, at least by an age, because if we’re talking about one incident and you can differentiate an incident, you need to do so. So we request that they designate, at least, an age. Defense counsel also argued: What I would like is this: The description of this one incident at age five came after all of what she claims were these other incidents at ages two, three and four. Therefore, it couldn’t have shown anything—it doesn’t bear on intent, opportunity, motive, or any of the other ideas from which 404(b) comes. Therefore, all the testimony about that record—about that one incident, since it does not satisfy the reasons under 404(b) for having admitted it, it should be stricken from the record and the jury instructed not to consider that one incident. The trial court overruled the objection. During its closing argument, the State directed the jury to the portion of the jury charge that set out the State’s election, telling the jury: First of all, you will see on Page 3, the top paragraph talks about the State electing to go forward on one particular incident. In this case, we have elected to go forward on one time, at night, in [the complainant] and [her sister’s] bedroom, in [the complainant’s] bed. That is a legal requirement in cases like this of chronic abuse. The State is required to elect to go forward on one particular incident. However, as we all know, we have heard testimony about several incidents, with the same manner and means but several incidents of abuse. The paragraph right below that is going to tell you how you can consider those other incidents and helping you make your decision in this case. Appellant argues the instruction in the court’s charge was not specific enough and, as a result, it was as though there was no election at all. The State responds that the alleged lack of specificity in the jury charge did not contribute to appellant’s conviction, and with this we agree. Even if we assume—without deciding the –9– issue—that the instruction in the court’s charge was inadequate, the record establishes beyond a reasonable doubt that the alleged error did not contribute to appellant’s conviction. Applying the Phillips factors, see Duffey, 326 S.W.3d at 630 , we turn first to appellant’s need to be protected from the admission of extraneous-offense evidence. This first purpose may be easily dispensed with in this case because appellant was not entitled to protection from the admission of evidence of extraneous sexual offenses committed by him against the complainant. See TEX. CODE CRIM. PROC. ANN. art. 38.37; Dixon, 201 S.W.3d at 734 . Article 38.37 permits the admission of evidence of these offenses to show the previous and subsequent relationship between appellant and the complainant. TEX. CODE CRIM. PROC. ANN. art. 38.37; Dixon, 201 S.W.3d at 734 –35. Regarding the second purpose, we conclude there is no risk the jury found appellant guilty of an offense that was not proven to its satisfaction beyond a reasonable doubt. See Dixon, 201 S.W.3d at 734 –35. The complainant testified appellant would enter her room with a flashlight, remove her pajama pants and underpants, and lick her “pee-pee.” This happened “[l]ots of times” during the night in her bedroom; it happened once in her mother’s bedroom. Similarly, in Dixon the Court of Criminal Appeals concluded the record established beyond a reasonable doubt that the error in failing to require the State to elect did not contribute to appellant’s conviction or punishment where the victim testified the offenses –10– occurred 99 times in the nighttime and once in the daytime. See id. And just as in Dixon, the “multiple offenses” here were all recounted by the same source—the child complainant. See id. at 735 . Thus, as the Dixon court concluded, “[t]his case is not concerned with evidence of different activities from different sources that a jury might perceive to ‘add up’ to the defendant being guilty even though no individual offense was proven beyond a reasonable doubt.” Id. Additionally, “the child complainant did not testify about a number of varied incidents with differing details that might have incrementally added to the idea that the defendant must have done something to provoke the plethora of stories about his activities.” Id. Instead, the complainant described one sequence of events and testified that this sequence happened “[l]ots of times” during the night in her bedroom and only once in her mother’s bedroom. See id. “Whether the sequence of events was alleged to have occurred one, ten, fifty, or one hundred times does not by itself impact the believability of the child’s story.” Id. We next determine whether, absent a proper instruction, we can be sure the jury verdict was unanimously directed at the single offense elected. The only distinguishing detail regarding the occasions when appellant licked the complainant’s “pee-pee” is that it occurred once in her mother’s bedroom—the other incidents took place in her bedroom. Accordingly, we perceive no risk the jury could have reached a non-unanimous verdict in this case. Based on the record in this case, anyone who believed the complainant’s allegations would have concluded the –11– offense occurred in her bedroom. See id. at 735 (“The nighttime scenario being typical (ninety-nine out of one hundred), it is obvious from this record that anyone who believed the complainant’s allegations in any respect would believe that [the] sexual assaults occurred at night.”). As for the question of adequate notice, appellant’s defense was the same for each incident of sexual abuse—a categorical denial. He did not have different explanations for the different incidents, nor did he offer an alibi. And as we have already discussed, the only distinction between the incidents of sexual abuse is that one occurred in her mother’s bedroom; the others happened in her bedroom. Therefore, appellant’s defense was not inhibited by any error that may have occurred and he was not deprived of proper notice or an opportunity to defend himself. See Owings, 541 S.W.3d at 153 ; Dixon, 201 S.W.3d at 736 . Based on our review of the record, we conclude that, even if we assume error in failing to adequately instruct the jury concerning the elected offense in this case, the record establishes beyond a reasonable doubt that the error did not contribute to appellant’s conviction. We overrule appellant’s first issue. 2. Admissibility of Evidence In his second issue, appellant contends the trial court abused its discretion in overruling appellant’s rule 403 objection “to the admission of sex toys and a pornographic cartoon parody video during the guilt/innocence phase of the trial,” –12– and that “[t]his evidence was more prejudicial than probative and unfairly prejudiced the jury against Appellant.” To preserve error for appeal, a party must make a timely objection that states the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint. TEX. R. APP. P. 33.1(a)(1)(A). The party must object each time inadmissible evidence is offered or obtain a running objection. Lane v. State, 151 S.W.3d 188 , 193 (Tex. Crim. App. 2004); Valle v. State, 109 S.W.3d 500 , 509 (Tex. Crim. App. 2003). Moreover, the argument on appeal must comport with the objection made at trial. See Clark v. State, 365 S.W.3d 333 , 339 (Tex. Crim. App. 2012). Appellant argues he objected to the admission of the sex toys that were found in the bag discovered by the complainant’s mother (and that she handed over to the police) under rule 403, and that the trial court overruled the objection. He fails, however, to direct this Court to where in the record this argument was made and ruled on by the trial court. Our review of the record shows his argument was not preserved. In a hearing held outside the jury’s presence, the parties discussed the redaction of a video of appellant’s interview with police. During the hearing, appellant requested that any mention of the sex toys be redacted because they were not relevant and were inadmissible under rules 403 and 404(b). But appellant’s argument was made as part of a motion to redact and concerned what should be –13– redacted from the video—it was not expanded to include the admission of evidence regarding the sex toys themselves. And even if this could be construed as a broader objection to the admission of all evidence regarding the sex toys, appellant failed to object that the evidence was inadmissible under rule 403 when that evidence (State’s exhibits 3 through 22) was offered or when it was discussed in testimony, nor did he obtain a running objection. Appellant instead objected to the admission of the bag that contained the sex toys, and photographs of what was in the bag, based on a failure to authenticate and relevance, and he made no rule 403 objection when Detective Kristina McClain of the Plano Police Department and the complainant’s mother testified about the bag’s contents. A contention based on rule 403 is not preserved by a relevance objection. See, e.g., Sony v. State, 307 S.W.3d 348 , 355– 56 (Tex. App.—San Antonio 2009, no pet.) (relevance objection to photographs at trial did not preserve appellate argument based on rule 403); Phifer v. State, No. 05- 14-01411-CR, 2016 WL 772737 , at *4 (Tex. App.—Dallas Feb. 29, 2016, no pet.) (mem. op., not designated for publication) (“Neither a contention based on rule 404(b) nor an argument under rule 403 was preserved by [appellant’s] relevance objection.”); Gamble v. State, No. 02-07-174-CR, 2009 WL 806879 , at *7 (Tex. App.––Fort Worth March 27, 2009, pet. ref’d) (mem. op., not designated for publication) (argument that admission of evidence violated rules 403, 404, and 405 not preserved because appellant did not so object at trial). We conclude appellant has failed to preserve his argument that the sex toys were inadmissible under rule –14– 403 for appellant review. We reach a similar conclusion regarding appellant’s argument that the probative value of the pornographic “Princess and the Frog” video was outweighed by the danger of unfair prejudice because (according to appellant’s argument) both appellant and the complainant agreed it was a mistake to have her view the cartoon and it was promptly “shut off” after it was discovered to be pornographic. Appellant claims he objected to the admission of the “Princess and the Frog” video under rule 403, and that the trial court overruled this objection, but we again note that he has not directed us to any place in the record where such an argument was made and ruled on by the trial court. Indeed, our review of the record shows his argument was not preserved. At the time the actual video was offered into evidence, appellant’s only objection was that it was not properly authenticated. Hence, the argument on appeal does not comport with the trial objection, and appellant has not preserved his complaint for appellate review. We further note that appellant made no rule 403 objection when the complainant and her mother testified about the video. Appellant has, consequently, failed to preserve any argument that the evidence was inadmissible under rule 403. We overrule appellant’s second issue. 3. Sufficiency of the Evidence In his third issue, appellant argues the child complainant’s testimony was not credible because “she was unable to detail whether there was one offense or many, nor was she able to identify the appellant as her abuser during the trial”; therefore, –15– “the trial court abused its discretion by failing to order an instructed verdict.” To begin with, any error in the denial of a motion for an instructed verdict is treated as a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479 , 482 (Tex. Crim. App. 1996); Segovia v. State, 543 S.W.3d 497 , 502 n. 2 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Thus, in determining whether the evidence is sufficient to support a conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a factfinder could have found the essential elements of the charged offense were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 , 319 (1979); Gear v. State, 340 S.W.3d 743 , 746 (Tex. Crim. App. 2011). The factfinder must resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic facts. Murray v. State, 457 S.W.3d 446 , 448 (Tex. Crim. App. 2015) (citing Jackson, 443 U.S. at 319 ). We presume the factfinder resolved any conflicting inferences in favor of the verdict, and we defer to that resolution. See Jackson, 443 U.S. at 326 ; Clayton v. State, 235 S.W.3d 772 , 778 (Tex. Crim. App. 2007). We also defer to the factfinder’s evaluation of the credibility and weight of the evidence. Williams v. State, 235 S.W.3d 742 , 750 (Tex. Crim. App. 2007). The standard is the same for both direct and circumstantial evidence. Wise v. State, 364 S.W.3d 900 , 903 (Tex. Crim. App. 2012). A child victim’s testimony alone is sufficient to support a conviction for –16– aggravated sexual assault of a child. See, e.g., Revels v. State, 334 S.W.3d 46 , 52 (Tex. App.—Dallas 2008, no pet.); Tear v. State, 74 S.W.3d 555 , 560 (Tex. App.— Dallas 2002, pet. ref’d). Also, a child victim’s outcry statement alone can sustain the conviction. Tear, 74 S.W.3d at 560 . There is no requirement that the victim’s testimony be corroborated by medical or physical evidence. See Newby v. State, 252 S.W.3d 431 , 437 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d); Robinson v. State, No. 05-09-01329-CR, 2011 WL 168736 , at *4 (Tex. App.—Dallas Jan. 20, 2011, no pet.) (mem. op., not designated for publication). As charged in the indictment, appellant was accused of intentionally and knowingly causing the female sexual organ of the complainant, then a child younger than six years of age, to contact appellant’s mouth. See TEX. PENAL CODE ANN. § 22.021(a)(1)(A). Trial testimony showed that the complainant said appellant would come into her room at night with a black flashlight, remove her pajamas and underpants, and lick her “pee-pee.” The complainant testified this happened “[l]ots of times” during the night in her bedroom; it happened once in her mother’s bedroom. This testimony alone is sufficient to support appellant’s conviction. See, e.g., Revels, 334 S.W.3d at 52 ; Tear, 74 S.W.3d at 560 . Appellant argues the evidence was insufficient because the complainant responded “I don’t know” to several questions and was unable to identify appellant in court as her abuser. But the record also shows that the complainant testified appellant came into her room at night, removed her clothing, and licked her “pee- –17– pee.” Additionally, although the complainant testified that she did not see appellant in the courtroom, she testified that she had not seen appellant in a long time and was scared when she had to look at the table where he was sitting. The jury was the sole judge of the weight and credibility of the evidence and it was free to accept or reject the evidence presented by either side. See, e.g., Wesbrook v. State, 29 S.W.3d 103 , 111 (Tex. Crim. App. 2000). Appellant also contends the evidence was insufficient because the forensic interviewer testified that, as an expert, she was able to judge the complainant’s body language and communication. Appellant argues this was a “dubious claim” that is not supported by the record. Again, however, the jury was free to accept or reject any and all evidence presented by either side. See id. Accordingly, we conclude the evidence is sufficient to support the conviction, and we overrule appellant’s third issue. We affirm the trial court’s judgment. /Lana Myers/ LANA MYERS JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b) 190564F.U05 –18–  Court of Appeals Fifth District of Texas at Dallas JUDGMENT ARES WENDELL HIATT, On Appeal from the 366th Judicial Appellant District Court, Collin County, Texas Trial Court Cause No. 366-80604- No. 05-19-00564-CR V. 2018. Opinion delivered by Justice Myers. THE STATE OF TEXAS, Appellee Justices Nowell and Evans participating. Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 30th day of November, 2020. –19–

2020-01-17 22:01:47.847303+00

Milliken

*1032OPINION. Milliken: The controlling question to be decided in this proceeding is whether petitioner is an association taxable pursuant to section 2 (2) of the Revenue Act of 1921, as a corporation. “Association, ” as specified in the statute, supra, was defined in Hecht v. Malley, 265 U. S. 144, as follows: *1033The word “ association ” appears to be used in the Act in its ordinary meaning. It has been defined as a term “ used throughout the United States to signify a body of persons united without a charter, but upon the methods and forms used by incorporated bodies for the prosecution of some common enterprise.” 1 Abb. Law Dict. 101 (1879) ; 1 Bouv. Law Dict. (Kawle’s 3d Rev.) 269; 3 Am. & Eng. Enc. Law (2 Ed.) 162; and Allen v. Stevens, 33 App. Div 485, 54 N. Y. Supp. 8, 23, in which this definition was cited with approval as being'in accord with the common understanding. Other definitions are: “ In the United States, as distinguished from a corporation, a body of persons organized, for the prosecution of some purpose, without a charter, but having the general form and mode of procedure of a corporation. ” Webst. New Internat. Diet. “ [U. S.) An organized but unchartered body analogous to but distinguished from a corporation. ” Pract. Stand. Diet. At the outset it is well to point out that the Revenue Act of 1921 contains provisions for the taxation of both trusts and associations and thus recognizes such entities as subject to the separate methods of taxation. It is our duty to determine within which class petitioner shall fall. Did petitioner possess the characteristics of a trust or those of an association, as above defined? The question presented is whether petitioner bore more resemblance to the one class than to the other and, if so, to which class. Petitioner possessed every characteristic of a trust cognizable and enforceable by a court of equity. There was present a corpus, the separation of the equitable and legal titles, trustees and beneficiaries. While all this is true, yet it was an association within the meaning of the Act, if it was voluntarily organized to transact business under corporate forms and did so transact business. E. A. Landreth Co., 11 B. T. A. 1; Durfree Mineral Co., 1 B. T. A. 231. Was petitioner so organized and did it so transact business? To put it otherwise, what was there, if anything, in its organization and operation which would classify it as an association rather than a trust. We can perceive that it possessed only two elements, if that many, which it had in common with a corporation. First, it issued “ units ” which were similar to shares of stock issued by a corporation but this standing alone would not necessarily convert it into a corporation. Myers, Long & Co., 14 B. T. A. 460. With reference to'the second element, that is, whether petitioner was organized to transact or carry on trade or business, or did so, the record discloses that certain persons were the owners of an oil and gas lease which was about to lapse, that they deemed it good business policy to ascertain the value of the lease by drilling one well and if it was ascertained that oil existed, to forthwith sell the proven lease, otherwise to permit the lease to lapse by operation of time. For this purpose, money was needed and it was determined to raise the same by issuing “ units ” which gave their owners an *1034interest in the undertaking. It thus appears that the sole purpose of the trust was to raise money sufficient to drill one well, ascertain the possible value of the property and then sell it and distribute the proceeds. The purpose for which petitioner was organized was accomplished in the short taxable period before us. The things were done that were planned to be done. The money raised was placed in the hands of the trustees for a single purpose and not for the purpose of obtaining gain from a repetition of investments or business undertakings. As soon as money was received by the trustees, if even from the sale of assets, it was not retained or kept in a business but immediately distributed to the “ unit ” holders. The petitioner was not organized for the purpose of “ continued efforts in the pursuit of profit or _ gain and such activities as are essential to those purposes,” (Von Baumbach v. Sargent Land Co., 242 U. S. 503), but rather to advantageously dispose of property already owned by securing additional funds and thus to wind up a business undertaking. Gonzolus Creek Oil Co., 12 B. T. A. 310, and White v. Hornblower, 27 Fed. (2d) 777. The fact that as a trust it engaged in the limited and restricted business necessary to accomplish such a purpose would not convert it from a trust into an association. Wilson Syndicate Trust, 14 B. T. A. 508. We recur to the query of what resemblance petitioner bore to a trust and what resemblance it bore to a corporation. A question which has troubled the Board is whether the absence of control of the trustees by the shareholders converts what would otherwise be an association into a trust. This question we decided in the negative in E. A. Landreth, supra, a proceeding which involved an entity which possessed every attribute of a corporation except, as was there contended, the power of the shareholders to control the trustees. We there held that what was otherwise clearly an association was not converted into a trust by reason of the absence of such control. While this is true of what otherwise would clearly be an association, we should not forget that it is the usual custom for stockholders of a corporation to meet at stated intervals and elect directors for stated terms and thus to a certain extent exert control over corporate affairs. The absence of such control is assuredly an element which should be taken into consideration. Here the shareholders could exert no control whatever over the trustees, who were self perpetuating. In this respect petitioner more closely resembled a trust than an association. Further, the declaration of trust provided: The Trustees herein shall have power and authority and it will be their duty to collect all rents, royalties and revenues from the Trust Estate, os well as the proceeds from any sale of the Trust Property, and distribute same among the unit holders in proportion of their respective interests. (Italics supplied.) *1035In thus providing for the distribution of the corpus, when and as often as any part of it was converted into money, petitioner was unlike an ordinary business corporation which has a capital stock either paid in or subscribed, which is owned by the corporation and which, upon insolvency or dissolution, becomes a trust fund for the payment of its obligations. It was unlike an ordinary business corporation which pays dividends only out of net earnings and usually distributes its capital only upon liquidation, partial or final. Here again petitioner resembles a trust rather than an association. See Baldwin v. Miller & Lux, 152 Calif. 454; 92 Pac. 1030. Taking into consideration all the facts of the record and particularly that petitioner was organized for a very limited purpose; that it transacted its affairs only for the accomplishment of such purpose ; that it wound up its affairs within a few months after the date of its organization and distributed the entire proceeds to its shareholders; the absence of corporate form and method, and the fact that it bears a much closer resemblance to a trust than to an association, we are of opinion that respondent was in error in taxing petitioner as an association. Having reached this conclusion, it is unnecessary to discuss or decide the question of whether petitioner is entitled to the benefits of section 104 of the Revenue Act of 1928. Reviewed by the Board. Judgment will he entered for the petitioner. ÁRttndell concurs in the result.

2020-01-17 22:01:47.879622+00

Phillips

*1036OPINION. Phillips: In 1920 the petitioner owned a farm which had cost him, with improvements and after deducting depreciation, $35,362.50. He sold it in that year for $60;000, receiving $20,000 in cash and the balance in a mortgage, which the parties are agreed had no fair market value. In those circumstances no tax could properly be imposed until there was a realization upon the mortgage. No tax *1037was paid on this sale, or, precisely stated, the tax which was paid was subsequently refunded. It seems evident that at this point the petitioner owned a mortgage which, for the purpose of computing taxable gain or loss on its sale or other disposition, had cost him $15,362.50. Any greater sum which he realized from such mortgage would be income. In 1924 petitioner exchanged this mortgage and $1,000 in cash for the property, which then had a value of $31,000. The Commissioner determined that petitioner realized a gain of $20,637.50 from this transaction, being the difference between $37,000 and the sum of $15,362.50 and $1,000. We are of the opinion that the action of the Commissioner was proper. Petitioner contends that this was merely a purchase of property, which can never give rise to a gain. While it was a purchase of real estate, it was likewise a sale or other disposition of the mortgage. One asset was exchanged for another. Such a transaction gives rise to a gain or loss. Petitioner relies upon our decisions in Manomet Cranberry Co., 1 B. T. A. 706, and I. M. Davis, 2 B. T. A. 359, as controlling. In each of those cases the face value of the mortgage was returned as income when received. For tax purposes those mortgages had a cost equal to their principal amount, and no gain would be realized until a sum greater than their face amount was realized upon them. In the case of Manomet Cranberry Co., the real property was sold under foreclosure and purchased by the owner of the mortgage. We held that the value of the property was unimportant; that as there had been a purchase, the purchase price controlled and not the value of the property. It appeared, however, that after making allowance for costs and taxes paid by the purchaser, the purchase price was in excess of the cost of the mortgage. These were considered part of the price and the petitioner there was charged with taxable gain to the extent that the price realized exceeded the cost of the mortgage. The transaction was treated exactly as it would have been treated had the property been sold to a third party, the proceeds paid to the mortgagee and used by him to purchase other property. The single question presented was whether, when the mortgagee purchased the property at foreclosure, computation of his gain was to be measured by the price he bid or by the value of the property. We were of the opinion that in such a case the price paid was controlling and that value was immaterial. In the case of I. M. Davis, supra, the property received back had depreciated in value and was worth only the cost of the mortgage. It is obvious that no gain resulted. In the case before us, there was no sale of the property; consequently the value of that which was received in exchange for the *1038mortgage may not be measured by its purchase price, but must be measured by its value. Using this measure and applying against it the basis which must be used as the cost of the mortgage to petitioner, there is a gain in the amount computed by the Commissioner. This property cost petitioner $35,362.50. When he received it back it was worth $37,000. In the meantime he had received cash of $20,000. It is evident that petitioner has realized some $20,000 from these transactions which is subject to tax at some time. No tax having been imposed upon the sale because of the doubtful value of the mortgage, the transaction became subject to tax when the mortgage was discharged. Reviewed by the Board. Decision will be entered for the respondent.

2020-01-17 22:01:47.913796+00

Sibekin

*1040OPINION. Sibekin : More than five years elapsed between the filing of return on or about June 14, 1919, and the mailing of the deficiency letter on August 5, 1926. Respondent asserts, however, that the statute of limitations does not bar the deficiency, as the acceptance of the *1041return and the assessment of a tax thereon constituted a tentative allowance of the claimed amortization deduction making the statute of limitations inoperative under section 278 (b) of the Revenue Act of 1926, which reads as follows: Any deficiency attributable to a change in a deduction tentatively allowed under paragraph (9) of subdivision (a) of section 214, or paragraph (8) of subdivision (a) of section 234 of the Revenue Act of 1918 or the Revenue Act of 1921, may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time. We have ruled adversely on the contention made by the respondent in W. G. Duncan Coal Co., 13 B. T. A. 672. See also Thomas P. Beal, 13 B. T. A. 677. There remains respondent’s further contention that in the letter of November 19, 1923, there was a tentative amortization allowance of $23,079.10; that of this amount so allowed $7,927.25 was disallowed in the 30-day letter of April 13, 1926, which action was reiterated in the deficiency letter of August 5, 1926; and that so much of the deficiency as is due to increasing the net income by this amount of $7,927.25 can be assessed at any time. The letter of November 19, 1923, notified petitioner that a final determination of its net income (which by clear inference, as well as the expressed request for acquiescence, included final determination of the amortization deduction claim) must be made before consideration could be given the claim for special assessment. There is no suggestion that the amortization allowance granted therein was “ tentative ” (which word, according to Webster’s New International Dictionary, is derived from the Latin word “ tentare ” — to try, and is defined as “ of, pertaining to, or based on, a trial or trials; experimental; as, a tentative theory). Prior to such letter petitioner had requested a determination of its amortization claim, had furnished required information, and one of respondent’s engineers had investigated and made a report on which the allowance was based. Nor do we believe that petitioner’s answering letter in which he acquiesced in the determination made as a basis for considering special assessment (but reserving petitioner’s rights under the law and regulations) indicates the allowance to be tentative rather than the final determination it purports to be. Of course such determination was not final in the sense that it precluded the respondent from reopening the case and adjusting or changing the allowance at any time within the prescribed statutory period. Section 278 (b) of the Revenue Act of 1926 provides an exception to the general limitation provision. Obviously, it was not intended to lift the statutory bar from all cases involving amortization deductions. Had Congress so intended, it seems clear that the words “ tentatively allowed ” would never have been used. Accordingly, *1042we must not only treat section 278 (b) as an exception, but we must attach due weight to the word “ tentative.” There is nothing in the record to distinguish this case from the ordinary one in which the respondent grants a deduction and later sees fit to reduce the amount thereof. Reviewed by the Board. Judgment will be entered for the petitioner.

2020-12-02 18:00:39.256527+00

http://www.ca10.uscourts.gov/opinions/20/20-1037.pdf

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT December 2, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 20-1037 (D.C. Nos. 1:15-CV-02223-CMA & GARY L. WALKER, 1:09-CR-00266-CMA-3) (D. Colo.) Defendant - Appellee. ------------------------------ COLORADO SPRINGS FELLOWSHIP CHURCH, Movant - Appellant. _________________________________ ORDER AND JUDGMENT* _________________________________ Before TYMKOVICH, Chief Judge, MURPHY and PHILLIPS, Circuit Judges. _________________________________ This is the most recent of several appeals stemming from litigation surrounding a criminal matter involving a former member of Third-Party Movant-Appellant Colorado Springs Fellowship Church (CSFC). In this appeal, * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 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. CSFC challenges the district court’s orders granting CSFC only limited access to a hearing transcript (Access Order) and denying CSFC’s motion to recuse the district court judge (Recusal Order). We dismiss the appeal of the Access Order for lack of jurisdiction and affirm the Recusal Order. Background Our decision in the first appeal involving this litigation details the relevant background, see United States v. Walker, 761 F. App’x 822, 826-29 (10th Cir. 2019), so we need not repeat it here. We do, however, provide the following abbreviated version as context for our consideration of the issues before us. The underlying case is a proceeding under 28 U.S.C. § 2255 brought by Gary L. Walker, a former member of CSFC, challenging his conviction of conspiracy to commit mail fraud arising out of a business CSFC members operated. As relevant here, his § 2255 motion claimed he received ineffective assistance of counsel at sentencing. After an evidentiary hearing, the district court granted that portion of the motion, concluding Walker’s sentencing counsel (Gwendolyn Lawson) operated under a conflict of interest because CSFC’s pastor (Pastor Banks) dictated counsel’s strategy. The court then vacated Walker’s prior sentence and resentenced him. At Walker’s request, the district court restricted access to the transcript of his § 2255 hearing. The court later unsealed the portion of the transcript containing Lawson’s testimony, but it denied CSFC’s motion to unseal the entire transcript, concluding that releasing it was likely to result in CSFC members harassing and threatening Walker and former CSFC members who testified at the hearing. In 2 Walker, we held that the district court abused its discretion in denying the motion because it “did not adequately account for the strong presumption in favor of public right of access to judicial records and did not narrowly tailor its orders restricting access to the transcript.” 761 F. App’x at 826. In particular, we noted it was not apparent why Walker’s interest in not being harassed and threatened was advanced by restricting access to the testimony of Joshua Lowther, who, with Lawson, served as counsel for Walker and several codefendants, and the testimony of the process server who served process on Lawson. Id. at 836-37. We did not order the district court to unseal the transcript but vacated its order and remanded the matter to the district court with directions to consider the appropriate legal standard in deciding whether, and to what extent, to restrict access to the transcript. Id. at 838. On November 21, 2019—about eleven months after we issued our decision in Walker—CSFC filed a motion in district court seeking the district court judge’s recusal and reassignment of the matter to a different judge pursuant to 28 U.S.C. §§ 144 and 455. CSFC claimed the judge’s delay in resolving the matter on remand and comments she made at Walker’s resentencing hearing about CSFC and Pastor Banks reflected judicial bias against them. Those comments are summarized in Walker, 761 F. App’x at 827-28, and we do not repeat them here. That same day (November 21), the district court issued the Access Order, unsealing the portions of the transcript containing statements the court made (other than those identifying witnesses) and the testimony of Lawson, Lowther, and the process server. The court denied CSFC’s motion to unseal the remainder of the 3 transcript, however, finding it necessary to restrict access to the remaining witnesses’ testimony based on concerns about CSFC’s harassment of its former members. Also on November 21, the court entered a separate minute order denying CSFC’s recusal motion as moot, noting there was nothing left for the court to decide after it ruled on CSFC’s motion to unseal the transcript. CSFC sought reconsideration of that order. On December 9, the court issued the Recusal Order, granting reconsideration but denying the recusal motion, holding that it was untimely and that the allegations of bias in the motion and Pastor Banks’s supporting affidavit did not require the judge’s disqualification. Discussion 1. Access Order CSFC first challenges the Access Order, claiming the district court abused its discretion by denying CSFC’s request to unseal the entire transcript. Because the appeal of that order is untimely, we lack jurisdiction to review it and therefore do not address CSFC’s arguments. The timely filing of a notice of appeal is a “jurisdictional threshold to appellate review.” Raley v. Hyundai Motor Co., 642 F.3d 1271 , 1274 (10th Cir. 2011) (internal quotation marks omitted). A post-judgment ruling on a non-party’s motion for access to sealed court records is immediately appealable, either as a final order under 28 U.S.C. § 1291 or as a collateral order. United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424 , 1426 (10th Cir. 1990) (holding that post-judgment order granting intervenors’ motion for modification of protective order and for access to 4 sealed records was immediately appealable); see also United States v. Pickard, 733 F.3d 1297 , 1300-01 & n.2 (10th Cir. 2013) (recognizing that district courts have continuing jurisdiction to enforce sealing orders and to grant access to sealed documents “even if the case in which the documents were sealed has ended,” and concluding that post-judgment orders regarding sealed records may be appealed in § 2255 proceedings without a certificate of appealability). CSFC therefore had sixty days from the date the Access Order was entered to appeal it. See Fed. R. App. P. 4(a)(1)(B)(i); see also United States v. Pinto, 1 F.3d 1069 , 1070 (10th Cir. 1993) (recognizing that the sixty-day appeal period applies to orders entered in § 2255 proceedings). The order was entered on November 21, 2019, so the deadline was January 21, 2020. See Fed. R. App. P. 26(a)(1)(C) (providing that filing deadline that falls on a holiday is extended to the next court business day). CSFC filed its NOA on February 7, 2020—seventeen days late—and while the appeal was timely as to the December 9 Recusal Order, it was untimely as to the Access Order.1 CSFC’s failure to timely appeal the Access Order deprives us of jurisdiction to review it, and we cannot overlook jurisdictional defects. Raley, 642 F.3d at 1278 . We thus do not reach the merits of CSFC’s arguments and dismiss the appeal of the 1 We note that the government raised this jurisdictional issue in its response brief, and although it is the appellant’s burden to establish this court’s jurisdiction, Raley, 642 F.3d at 1275 , CSFC did not meaningfully address the timeliness issue in its reply brief. And contrary to CSFC’s suggestion, neither the fact that it did not gain access to the unsealed portions of the transcript until December 13 nor the fact that some of the evidentiary issues addressed in the Access Order and Recusal Order overlap affects the calculation of the deadline for appealing the Access Order. 5 Access Order.2 See id. at 1278-79 (dismissing untimely appeal for lack of jurisdiction). 2. Recusal Order CSFC claims the district court erred by denying its recusal motion as both untimely and insufficient to establish judicial bias. We disagree. We review the denial of motions seeking disqualification of a judge under §§ 144 and 455 for an abuse of discretion. Hinman v. Rogers, 831 F.2d 937 , 938 (10th Cir. 1987) (per curiam). A motion to recuse must be filed as soon as the movant learns of the facts demonstrating the basis for disqualification. Id.; see also United States v. Cooley, 1 F.3d 985 , 993 (10th Cir. 1993) (recognizing that a “motion to recuse . . . must be timely filed” (internal quotation marks omitted)). Granting such a motion “many months after an action has been filed wastes judicial resources and encourages manipulation of the judicial process.” Willner v. Univ. of Kan., 848 F.2d 1023 , 1029 (10th Cir. 1988) (per curiam). Disqualification is required both when a judge has “a personal bias or prejudice” against a party, § 144; see also § 455(b)(1) (same), or when presiding over the case would create an appearance of bias, see § 455(a). Recusal for an appearance of bias is required when “sufficient factual grounds exist to cause an objective 2 In light of our conclusion that the appeal of the Access Order is untimely, we need not address the government’s alternative jurisdictional challenge based on CSFC’s failure to designate the Access Order in its notice of appeal. 6 observer reasonably to question the judge’s impartiality.” Cooley, 1 F.3d at 992 . The party seeking a judge’s disqualification must show that “a reasonable person, knowing all the relevant facts, would harbor doubts about the judge’s impartiality.” Id. at 993 (internal quotation marks omitted). Because this standard is an objective one, “[t]he inquiry is limited to outward manifestations and reasonable inferences drawn therefrom.” Id. “[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion,” and when, as here, the movant does not allege an extrajudicial source of bias, adverse rulings rarely “evidence the degree of favoritism or antagonism required” to disqualify the judge. Liteky v.United States, 510 U.S. 540 , 555 (1994); see also Green v. Branson, 108 F.3d 1296 , 1305 (10th Cir. 1997) (“[A]dverse rulings cannot in themselves form the appropriate grounds for disqualification.” (internal quotation marks omitted)). Likewise, “opinions formed by the judge on the basis of facts introduced or events occurring in the course of the . . . proceedings” are not a basis for disqualification “unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky, 510 U.S. at 555 . We find no abuse of discretion in the district court’s determination that CSFC’s motion was untimely. The motion sought recusal primarily based on comments the judge made about CSFC and Pastor Banks at Walker’s June 2017 resentencing hearing. At the latest, CSFC became aware of those comments in late January 2019, when we described them in Walker. See 761 F. App’x at 827-28. But 7 CSFC did not file its motion until eleven months later, and it did not even acknowledge, much less attempt to justify, its delay in seeking the judge’s disqualification based on those comments. Nor did CSFC explain why it waited so long to seek recusal based on what it perceived as the judge’s delay in ruling on its motion to unseal the transcript on remand. CSFC was plainly aware of both the judge’s comments and her failure to rule long before it filed its recusal motion. Indeed, it filed a petition for a writ of mandamus in July 2019—over four months before it filed the recusal motion—raising the exact same concerns and asking this court to direct that the district court case be reassigned to another judge for a ruling on the motion to unseal the transcript. Under these circumstances, the district court did not abuse its discretion when it determined that CSFC’s recusal motion was untimely. See Green, 108 F.3d at 1305 (motion filed five weeks after magistrate judge issued recommendation reflecting alleged bias was untimely); Willner, 848 F.2d at 1029 (motion filed ten months after discovery of alleged bias was untimely); Hinman, 831 F.2d at 938 (motion filed three and five months after movant discovered allegedly disqualifying facts was untimely). We also find no abuse of discretion in the district court’s determination that the motion and supporting affidavit alleged insufficient facts to warrant disqualification. First, despite CSFC’s efforts to show bias by highlighting the various ways in which it disagrees with the substance of the district court’s ruling on its motion to unseal the transcript, adverse rulings do not establish bias. See Green, 108 F.3d at 1305 ; see also Procter & Gamble Co. v. Haugen, 427 F.3d 727 , 744-45 8 (10th Cir. 2005) (denying request to assign different district judge on remand based on adverse rulings, concluding that claim that judge’s “‘track record’ in this case would ca[u]se a reasonable person to question whether justice was being done in this case” amounted to dissatisfaction with the court’s legal rulings). Second, contrary to CSFC’s contention, nothing in the record suggests that the judge “bas[ed] her rulings on her own perception of how a Christian should behave,” Aplt. Br. at 53, or that her “decisions directly related to her opinions” about CSFC and Pastor Banks, id. at 54 n.16. True, the judge’s comments at the resentencing hearing and her observations in the Access Order and Recusal Order about the conduct of CSFC members during and after Walker’s trial reflect a negative opinion about how CSFC and Pastor Banks treated Walker and how they conducted themselves throughout the proceedings. But the judge did not make those comments and observations in a vacuum. Walker argued at resentencing that he had been under the undue influence of CSFC and Pastor Banks when he committed the underlying offense. Their conduct vis-à-vis Walker was thus directly relevant to the court’s sentencing decision, and its observations about the degree of control they held over him were based on testimony and other evidence presented at the habeas and resentencing hearings. Their harassment of and retaliation against him and their conduct during his trial were also relevant to issues before the court, including whether CSFC and Pastor Banks should have access to the transcript. With one exception—the remark questioning whether they espoused values consistent with Christianity—the judge’s comments were findings based on the evidence. The fact 9 that the evidence might have left her “ill disposed toward” CSFC and Pastor Banks was not a basis for disqualification “since [her] knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and [were] . . . necessary to completion of the judge’s task.” Liteky, 510 U.S. at 551- 52 (also noting that it is “normal and proper for a judge to sit in the same case upon its remand”). And that one remark, while arguably inappropriate, was not disqualifying because when read in context it would not cause a reasonable person to doubt the judge’s impartiality. We acknowledge CSFC’s supplemental authority—an order issued by the same district court judge sua sponte recusing herself from presiding over a defamation suit CSFC, Pastor Banks, and her sons brought against two former CSFC members. But that order was issued ten months after entry of the Recusal Order in a case involving people who are not parties to the litigation at issue here, and the order does not explain the factual basis for the decision to recuse. Accordingly, that order does not undermine our conclusion that the judge did not abuse her discretion by declining to recuse herself in this case. 3. Motions to Supplement the Record on Appeal CSFC and Walker both filed motions seeking to supplement the record with materials that were not before the district court. All documents filed in the district court are part of the record available for our review. See Fed. R. App. P. 10(a). Rule 10(e) allows for correction and modification of the record to ensure that it “truly discloses what occurred in the district court,” id. R. 10(e)(1), and permits 10 supplementation with material items omitted or misstated in the record. But it does not allow parties to supplement the record with documents not before the district court in an effort to “build a new record.” United States v. Kennedy, 225 F.3d 1187 , 1191 (10th Cir. 2000) (internal quotation marks omitted). CSFC and Walker are no doubt aware of that rule given our denial in Walker of their motions to supplement the record with documents that were not part of the district court record. See 761 F. App’x at 832. And neither has shown that the new materials present the “rare exception” to that rule. See Kennedy, 225 F.3d at 1192 (recognizing our “inherent equitable power to supplement the record” exceeding the power provided in Rule 10(e) but declining to exercise it). We thus deny both motions. Conclusion We dismiss the appeal of the district court’s November 21, 2019 order denying CSFC’s motion for access to the entire transcript, affirm the December 9, 2019 order granting reconsideration but denying CSFC’s motion to recuse, and deny CSFC’s and Walker’s motions to supplement the record. Entered for the Court Timothy M. Tymkovich Chief Judge 11

2020-01-17 22:01:48.067259+00

Love

*1052OPINION. Love : The petitioner’s claim to the deduction from income for the year 1920 of the amount of $6,596.71 as a bad debt owing from Orrin S. Claypoole is predicated upon section 214 (a) (7) o.f the Revenue Act of 1918, which provides: Sec. 214. (a) That in computing net income there shall be allowed as deductions: ****** * (7) Debts ascertained to be worthless and charged oft within the taxable year. The Board has held that to be entitled to the benefit of the section quoted, a taxpayer must establish, first, that the debt was ascertained to be worthless during the taxable year, and, second, that the debt was charged off during the taxable year. H. L. Gueydan, 4 B. T. A. 1250. Under section 234 (a) (5) of the same statute we construed an exactly similar provision concerning corporations, to the same effect. Mason Machine Works Co., 3 B. T. A. 745. In our opinion the petitioner has failed to establish either of the essentials predicate to allowance of the deduction claimed. Upon the record before us we would even be hesitant in finding that the debt was in fact worthless or that the petitioner has ever ascertained it to be so. In support of the alleged ascertainment of worthlessness during 1920, the petitioner testified that he repeatedly requested Claypoole to settle the account, such requests being made during 1919 and 1920. Claypoole’s promise to do so when he had “ good luck ” never mate*1053rialized. In 1919 he discovered that a house Claypoole claimed to own stood in the name of Claypoole’s wife. In 1920 he learned that Claypoole was frequently spending time, and presumably money, in Pittsburgh and that he was not living with his wife. Upon these facts the petitioner asks us to find that he ascertained the debt to be worthless during 1920. The petitioner testified that among his reasons for opening a new account on June 18, 1919, was the fact that he “ considered the other account was worthless.” Again he testified that he thought his determination of worthlessness was made during 1919, as shown on the last page there, where it is ruled off.” This statement refers to December 31, 1919. At various other points he testified that it was during 1919 and again that it was during 1920. Among his reasons for believing that his ascertainment of worthlessness occurred in 1920 was the fact that he did not carry the old account into the new one at January 1, 1920. The testimony mentioned above does not impress us with the idea that the petitioner can now state definitely that he ascertained the debt in question to be worthless during 1920. In fact, under examination the petitioner always found himself on very uncertain ground when trying to fix the ascertainment as occurring in that year. He freely admitted no independent recollection and his books give little support to such a conclusion. On brief the petitioner’s counsel contends that the original account could not have been determined to be worthless at May 23, 1919, when the last contract carried in that account was completed, because until December 31, 1919, when Claypoole submitted his final bills under the contracts so carried, the petitioner could not balance the account to determine how the parties stood. Admitting that a final balance awaited submission of Claypoole’s bills, it does not necessarily follow that the account was neither worthless nor ascertained to be worthless prior to submission of such bills. Submission of the bills might well be merely the means of enabling the petitioner to determine with exactness his loss on an account long known to hold a loss. If such was the case, as appears, even the amount of the petitioner’s loss was determined on December 31, 1919. It may be remarked that Claypoole had consistently overdrawn his account and the petitioner testified definitely that he had long sought to have the matter corrected. We thus come to the conclusion that the petitioner has failed to sustain the burden of proof that the debt involved was ascertained to be worthless in the taxable year. It thereby becomes unnecessary for us to consider the effect, if any, of the second Claypoole account, which, upon the petitioner’s theory, ran concurrently with the first *1054from June 18, 1919, to December 31, 1920. Neither have we to discuss whether the debt was charged off during the taxable year, but, as hereinbefore indicated, we believe that the petitioner has likewise failed to sustain his burden in relation to that point. Judgment will be entered for the respondent.

2020-01-17 22:01:48.095784+00

Littleton

*107OPINION. Littleton: The petitioner concedes that $10,692.39 of the total deficiency determined, representing the tax for 10 months of the calendar year 1919 may be collected, but contends that any tax determined upon its income for the calendar year 1918, or any part of the fiscal year 1919 which falls within the calendar year 1918, is barred by the statute of limitations properly applicable thereto. In support of this contention, the petitioner takes the position (1) that the consent of November 29, 1924, related solely to the calendar year 1919, a return for that year having been made upon such basis, and that it does not, therefore, authorize the assessment and collection of a deficiency not attributable to the calendar year 1919, and (2) that the return for 1918 having been made on a calendar year basis and filed on June 12, 1919, the period within which assessment and collection of any deficiency in tax for that year or any part *108thereof expired, on June 12, 1924, pursuant to the limitation provided by law. The Commissioner, on the other hand, contends that the written consent covers the fiscal period begun November 1, 1918, and ended October 31, 1919, and that, therefore, no portion of the deficiency is barred, inasmuch as it was assessed within the period of limitation as extended by the consent. The consent in question provides for an extension of the period prescribed by law for the determination, assessment, and collection of the amount of income and profits taxes “ due under any return made by or on behalf of said taxpayer for the year 1919.” Both of the parties hereto lay great stress upon the meaning of the expression the year 1919,” the Commissioner contending, on the one hand, that in view of the circumstances herein, it means the fiscal year 1919, and the petitioner contending that, since a return for 1919 was made on the calendar year basis, it can only relate to the calendar year 1919. The controversy, therefore, is narrowed to the question whether the written consent operated to give the Commissioner the right to determine, assess and collect any deficiency in respect of petitioner’s income for 1918. The statute of limitations in respect of the determination, assessment and collection of any tax for the calendar year 1918 began to run upon the filing of the return for 1918, or June 12 1919, notwithstanding such return was upon an erroneous basis. Mabel Elevator Co., 2 B. T. A. 517. The five-year period of limitation relating to the year 1918, therefore, expired June 12, 1924, more than five months before the date of the Commissioner’s letters and the execution of the consent in question. In view of the peculiar facts in this case, we are of opinion that assessment and collection of $3,689.20 of the total deficiency claimed by the Commissioner which relates to the calendar year 1918 is barred by the statute of limitations. The consent in question was prepared and sent to the petitioner by the Commissioner for execution, and in the letter of November 25,1924, transmitting the same and requesting that it be executed, the Commissioner advised the petitioner that the execution of the consent would be necessary In view of the limitation of time for making additional assessments, * * * with the desire of the Income Tax Unit to make additional assessments * ⅜ * only after careful consideration of all the facts in the case.” Later, on December 3, 1924, the Commissioner then wrote the petitioner that in view of the limitation of time for making additional assessments it would be necessary for it to execute a waiver within ten days. In view of the uncertainty in the language of the consent as to whether it was intended to cover also the last two months of the calendar year 1918 and the language of the Commissioner’s letters *109that be desired to be protected against the limitation of time for “ making additional assessments for the year 1919,” we are of opinion that the consent can not be held to give the Commissioner the right to assess and collect that portion of the deficiency relating to the year 1918, as to which the statute of limitations expired before the requests for the consent were made and before the consent was executed by the parties. Reviewed by the Board. Judgment that 83,689£0 of the total deficiency of $H,381.59 determined for the fiscal year ending October 31, 1919, is barred by the statute of limitations will be entered.

2011-08-23 09:34:07+00

http://bulk.resource.org/courts.gov/c/F2/732/732.F2d.939.83-1590.html

732 F.2d 939 *dGotcher, In re 83-1590 United States Court of Appeals, Fifth Circuit. 4/19/84 1 W.D.Tex. AFFIRMED * Fed.R.App.P. 34(a); 5th Cir.R. 34.2 d Local Rule 47.6 case

2021-01-26 21:00:45.261645+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2021/01/26/19-16508.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT TONY ONTIA BROWN, No. 19-16508 Petitioner-Appellant, D.C. No. 2:17-cv-00387-GMN-CWH v. WILLIAM GITTERE, AKA Renee Baker; MEMORANDUM* ATTORNEY GENERAL FOR THE STATE OF NEVADA, Respondents-Appellees. Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding Argued and Submitted January 14, 2021 San Francisco, California Before: WALLACE and M. SMITH, Circuit Judges, and LASNIK,** District Judge. We write primarily for the parties who are familiar with the facts. Appellant Tony Brown appeals from the dismissal of his federal habeas petition as untimely. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. Brown filed a pro se federal habeas petition under 28 U.S.C. § 2254 , as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Brown concedes that he filed his federal habeas petition 95 days after the expiration of AEDPA’s one-year statute of limitations, but he argues that he is entitled to equitable tolling of the limitations period due to attorney misconduct. Brown alleges that his attorney failed to notify him that his direct appeal had concluded until more than ten months after the fact. For this allegation, he relies upon a declaration of his direct appeal attorney, which stated in relevant part: On 12/04/14 I received a telephone call from Mr. Brown asking the status of his appeal. I was surprised because his appeal was denied on 01/24/14 and I thought he had received our paperwork regarding this matter. Because of the limited time period for the filing, I agreed to refile his previously filed Writ of Habeas in June and September 2013. The district court held that Brown failed to meet the standard for equitable tolling because “his proffered evidence [did] not conclusively show that counsel failed to notify him of the status of his appeal,” and even if counsel did fail in this notification, “the evidence before the court [fell] well short of establishing” that an extraordinary circumstance stood in his way and prevented timely filing. Our court granted a certificate of appealability with respect to whether Brown’s 28 U.S.C. § 2254 petition was timely filed. We review de novo the question whether a petitioner’s application for federal habeas relief was timely filed. Rudin v. Myles, 781 F.3d 1043 , 1053 (9th Cir. 2014). 2 We also review de novo the question whether AEDPA’s statute of limitations should be tolled. Id. We conclude that the district court properly dismissed Brown’s petition as untimely because Brown was not entitled to equitable tolling. Under AEDPA, a one-year statute of limitations exists for federal habeas petitions filed by state prisoners. 28 U.S.C. § 2244 (d)(1). Brown concedes that his petition was 95 days late, and he argues that equitable tolling should apply to render his petition timely. AEDPA’s limitations period is subject to equitable tolling where a petitioner shows two elements: “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631 , 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408 , 418 (2005)). The petitioner has the burden of proof, and “the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.” Miranda v. Castro, 292 F.3d 1063 , 1065–66 (9th Cir. 2002) (alteration in original) (citation omitted). The district court did not address the diligence element of equitable tolling under AEDPA because the court concluded that Brown did not meet the element regarding extraordinary circumstances. We agree that Brown did not meet the element regarding extraordinary circumstances, and we further conclude that Brown failed to meet the diligence element. First, with respect to extraordinary circumstances, Brown’s evidence does not show that his attorney failed to notify him that his direct appeal was denied. Brown’s 3 attorney reported in her declaration, “I thought [Brown] had received our paperwork regarding this matter.” It is not at all clear that Brown’s attorney was at fault for Brown not being timely notified about the conclusion of his direct appeal. Even if arguendo, Brown’s attorney had been negligent in failing to notify Brown that his direct appeal was no longer pending, this is not “unprofessional conduct” that is “extraordinary.” Holland, 560 U.S. at 651 . The same day that Brown telephoned his attorney regarding his appeal, his attorney filed the state post-conviction petition. As a result of Brown’s attorney’s same-day action, Brown had 140 days of time remaining in the limitations period to file his petition.1 Although Brown attempts to analogize his case to Gibbs v. LeGrand, 767 F.3d 879 (9th Cir. 2014), there are key differences. Unlike Gibbs, Brown has not alleged that he made repeated attempts to contact his attorney, let alone that his questions or concerns went unanswered. See Gibbs, 767 F.3d at 887 (highlighting that Gibbs wrote to his attorney several times, and his attorney did not respond). Another way in which Brown’s case is distinct from Gibbs is that Brown has not alleged that his attorney promised to inform him of the status of his direct appeal. See id. (Gibbs’ attorney “expressly promised Gibbs that he would forward him the court’s notice of 1 The district court referred to there being 140 days of time remaining in the limitations period, whereas Brown’s opposition to the motion to dismiss below and his brief to our court indicate that 141 days remained. The distinction does not matter for purposes of our analysis. 4 decision”). Additionally, assuming arguendo that Brown did not learn about the denial of his direct appeal until he called his attorney on December 4, 2014, Brown still had 140 days to submit a timely petition. In contrast, Gibbs did not learn about the denial of his state post-conviction petition until “the federal deadline had passed.” Id. at 888. Brown’s circumstances are not extraordinary. Second, Brown also failed to demonstrate diligence. Our court has held that a petitioner did not meet the diligence element where, when given the opportunity to explain how he had used his time diligently after receiving his file from his attorney . . . [the petitioner] made no allegation or claim in his opposition to the motion to dismiss or his supporting declaration that he had acted diligently but had not been able to file earlier. Smith v. Davis, 953 F.3d 582 , 601 (9th Cir. 2020) (en banc). Brown has a similar problem. Brown did not file his own declaration, and his opposition to the motion to dismiss included the conclusory statement that he “could not have been more diligent.” Brown supported this statement with only the following explanation regarding his actions after the alleged impediment to his filing was removed: “Although Brown used 236 days to file his federal petition, it is clear Brown believed he was filing his federal petition well in advance of the one-year statute of limitations time-period—after all, he filed his state post-conviction petition the same day he learned his direct appeal had concluded.” Like the petitioner in Smith, Brown failed to support his claim that he acted diligently after the alleged impediment was 5 dispelled. Brown’s mere belief that he was filing his petition in advance of the one- year limitations period does not demonstrate diligence. See Waldron-Ramsey v. Pacholke, 556 F.3d 1008 , 1013 n.4 (9th Cir. 2009) (“[A] pro se petitioner’s confusion or ignorance of the law is not, itself, a circumstance warranting equitable tolling.”) (citing Raspberry v. Garcia, 448 F.3d 1150 , 1154 (9th Cir. 2006)). Because Brown meets neither of the equitable tolling elements, Brown is not entitled to equitable tolling, and his petition was not timely filed. AFFIRMED. 6

2021-01-26 21:00:45.464063+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2021/01/26/19-16282.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT TAYLER BAYER, No. 19-16282 Plaintiff-Appellant, D.C. No. 3:13-cv-04487-TSH v. MEMORANDUM* NEIMAN MARCUS GROUP, INC., Defendant-Appellee. Appeal from the United States District Court for the Northern District of California Thomas S. Hixon, Magistrate Judge, Presiding Argued and Submitted October 14, 2020 San Francisco, California Before: McKEOWN and NGUYEN, Circuit Judges, and WHALEY,** District Judge. Tayler Bayer appeals the district court’s judgment following a bench trial in favor of Neiman Marcus Group, Inc. on his claim under § 503(b) of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. We have jurisdiction * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert H. Whaley, United States District Judge for the Eastern District of Washington, sitting by designation. under 28 U.S.C. § 1291 . Reviewing the district court’s conclusions of law and mixed questions of law and fact de novo, OneBeacon Ins. Co. v. Haas Indus., Inc., 634 F.3d 1092 , 1096 (9th Cir. 2011), we reverse and remand. 1. As a preliminary matter, the parties dispute the standard1 that applies to § 503(b), which provides that “[i]t shall be unlawful to coerce, intimidate, threaten, or interfere” with any individual in the “exercise or enjoyment” of ADA rights. 42 U.S.C. § 12203 (b). Although in Brown v. City of Tucson, we appear to treat § 503(b) “interference” differently from § 503(a) “retaliation,” we did not resolve the precise legal standard that applied because the employer’s conduct in Brown clearly violated the plain statutory language. 336 F.3d 1181 , 1191-93 (9th Cir. 2003). We take the same approach here because Bayer presented sufficient evidence to prevail on his § 503(b) claim regardless of which legal standard applies. 2. After Bayer returned to work from medical leave, Neiman Marcus denied 1 Relying on the plain language of the statute and analogizing to the National Labor Relations Act and the Family and Medical Leave Act, Bayer argues that any conduct that “tends to chill” the exercise of ADA rights violates the statute. See Brown v. City of Tucson, 336 F.3d 1181 , 1190-93 (9th Cir. 2003) (exploring the same argument, declining to impose the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and ruling that the employee survived summary judgment on a § 503(b) claim by alleging a “distinct and palpable injury” because § 503(b)’s plain language prohibits an employer from threatening an employee to forgo statutorily protected accommodations). On the other hand, Neiman Marcus argues that § 503(b) requires a showing of a causal link between the protected conduct and the adverse action. 2 his request to modify his work schedule to accommodate his ADA-qualifying medical condition. Shortly thereafter, Bayer filed an administrative charge with the Equal Employment Opportunity Commission (“EEOC”), charging Neiman Marcus with an ADA violation for its failure to accommodate his work schedule request. The same day, Neiman Marcus presented Bayer with a mandatory arbitration agreement.2 The arbitration materials emphasized, and Neiman Marcus reiterated, that the agreement was not optional: Bayer had to choose between ending his employment by July 14, 2007 or, he was told, being bound by the agreement thereafter. The “choice” presented by Neiman Marcus was a false dilemma. As we held in 2014, Bayer’s continued employment did not constitute implied consent to arbitrate because he repeatedly refused to sign the agreement-related forms and therefore was not bound by the agreement. Bayer v. Neiman Marcus Holdings, Inc., 582 F. App’x 711, 713-14 (9th Cir. 2014). Nor was the agreement a run-of- the-mill arbitration document that simply channeled disputes to another forum, as Neiman Marcus maintains. The California Court of Appeal has found the agreement unconscionable.3 Among other troubling terms, the agreement 2 The parties agree that the arbitration agreement, which was sent to all at-will employees, was not a direct response to Bayer’s accommodation request. 3 Pinela v. Neiman Marcus Group, Inc., 238 Cal. App. 4th 227 , 250-51 (2015) (detailing “multiple unconscionable aspects” of the agreement under California 3 mandated arbitration for administrative charges already filed and purported to change statutes of limitation. Neiman Marcus also reserved for itself the power to amend, modify, or revoke the agreement terms at any time, with thirty days’ notice to the employee. Bayer reasonably believed that his consent to the agreement would imperil his EEOC charge, and by extension his ability to receive an ADA accommodation. He repeatedly refused to sign the agreement-related forms and filed a second EEOC charge asserting Neiman Marcus interfered with his rights in violation of ADA § 503(b) by pressuring him to choose between his ADA rights and his job. As the district court found, Bayer “felt intense pressure and coercion” in the leadup to the agreement’s effective date “and beyond.” Bayer testified it was one of the most stressful times of his life, and he had to take antidepressants and a sleep aid. The district court’s factual findings are more than sufficient to establish a claim under § 503(b) because, like the employee in Brown, Bayer suffered “direct harm” such as “giving up . . . ADA rights, or some other injury which resulted from . . . refusal to give up . . . rights, or from the [interference] itself.” 336 F.3d at 1193 (citing Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112 , 1124 (9th Cir. 2001)). law); cf. Peleg v. Neiman Marcus Group, Inc., 204 Cal. App. 4th 1425 , 1448-50, 1467 (2012) (finding the agreement illusory under Texas law, because among other flaws, the agreement permitted Neiman Marcus to modify its terms unilaterally upon thirty days’ notice). 4  We do not suggest that § 503(b) bars “any [employer] action whatsoever that in any way hinders” employees’ ADA rights. Brown, 336 F.3d at 1193 . But we hold that an employer interferes with ADA rights when it knowingly compels an employee with pending EEOC charges to a false choice to either resign or consent to an unconscionable arbitration agreement, which specifically targets ADA rights. Accordingly, we reverse the judgment of the district court and remand with direction to enter judgment in favor of Bayer. REVERSED and REMANDED. 5

2020-01-17 22:03:07.367765+00

Love

*1378OPINION. Love : In this case the Commissioner asserted a deficiency for 1924 based on his determination that McCabe realized a taxable gain in the acquisition by him of the assets of the Neely Lumber Company in the amount of $32,874.25. The petitioners assert that McCabe realized no profit whatever with respect to his dealings in the Neely Lumber Company, but suffered a serious loss. For the year 1925, the Commissioner asserted a deficiency based on a determination that McCabe constructively received, in 1925, bonuses in the amount of $66,326.59. Petitioners assert that McCabe never at any time actually received such bonuses, and that they were never taxable income to him. The record is very unsatisfactory. No boobs were submitted, except a ledger of the Neely Lumber Company, which apparently dis*1379closed but few items pertinent to the issues involved in this case, and several pages taken from the Combined Journal, Cash Book' and Daily Financial Statement ” of the Salamanca Furniture Works'and the Salamanca Panel Company, respectively. Nearly all the evidence was oral, and from memory of the witnesses. While the witnesses were stockholders and officers in the several companies involved, they were testifying with reference to another person’s business transactions that occurred eight or ten years ago. In several instances, as will be pointed out later, their testimony is either in conflict with the book records which are in evidence, or is not corroborated by such evidence. With reference to the Neely Lumber Company transactions involving the deficiency for 1924, we may point out that the Commissioner determined that McCabe realized a taxable gain in 1924 by taking over the assets of that company. That determination constitutes a prima facie case in favor of the respondent in this proceeding. It, therefore, devolves upon petitioners to overthrow that prima facie case by establishing, by competent evidence, that the Commissioner erred in whole or in part in that determination. It was fairly well established and we have found as a fact that McCabe endorsed notes of the Neely Lumber Company to the extent of thirty or forty thousand dollars and that he gave Neely a letter of credit which rendered him liable on several debts incurred by Neely. The'proof also shows that McCabe was sued on a number of claims against the Neely Lumber Company, and that he settled those claims, some at forty cents on the dollar, and some at fifty cents on the dollar. It is also established that McCabe took over the Neely Lumber Company in 1924, dismissed Neely from its management and substituted Haralson. The witness testified that in the liquidation of the Neely Lumber Company, McCabe collected and got about $3,000, but not exceeding $3,500. The ledger pages of the Neely Lumber Company that are in evidence disclose the fact that Haralson, after May, 1924, collected on notes and accounts receivable an aggregate of $14,597.43. The discrepancy here pointed out serves to illustrate the unreliable character of the oral testimony. Not that the witnesses intentionally misrepresented the facts, but rather in the very nature of things, they did not know or did not remember the facts. Other similar discrepancies might be pointed out. The result is that we can not determine from the record how much McCabe did receive as a result of the liquidation of the Neely Lumber Company. We may not act and decide issues of fact on surmises and guesses. We must have reliable and fairly definite evidence. *1380In his return for 1924, McCabe claimed a loss of $18,500, based on bad debts involving the Neely Lumber Company, but reported no .income from that source. Upon audit, the Commissioner enlarged the allowance for bad debts to $25,000, but added to income, $32,-874.25. Upon the evidence in the record, we can not hold that the Commissioner erred and, hence, we approve his action on the deficiency asserted for 1924. On January 31, 1921, there was credited to McCabe, on the books of the Salamanca Furniture Works, 2 per cent of its net earnings, $25,039.23, as a bonus. The same company credited to McCabe on January 6, 1923, a sum equal to 20 per cent of its sales in 1922, $18,355.18, as a bonus. That makes a total in bonuses credited to McCabe by the Salamanca Furniture Works of $43,994.41. There was credited on the books of the Salamanca Panel Company to McCabe as bonuses, on December 31, 1920, 20 per cent of net earnings, $12,871.87, and on March 6, 1923, 2 per cent on sales, $7,523.02, making a total of $20,394.89. This makes a grand total of bonuses credited of $64,389.30. The Commissioner charged to McCabe “ Bonuses constructively received in 1925, $66,326.59.” There were included in the capital account of the Thomas McCabe Industries, McCabe bonuses to the amount of $43,994.41, which is the exact amount of the two bonus items credited by the Salamanca Furniture Works. What became of the two items credited by the Salamanca Panel Company is not disclosed by the record. So far as the evidence discloses, either oral or documentary, those credits remained on the books at the date of the merger in 1925. It appears, therefore, that McCabe never was paid in cash any of those bonuses. The $43,994.41 that was carried into the capital account of the Thomas McCabe Industries was apportioned among its stockholders, and in that way McCabe got about 60 per cent of it. There is no evidence in the record as to what the market value of that stock was. Those bonuses were credited to McCabe in 1921 and 1923, respectively. There is no evidence in the record that shows that the several corporations had the cash at the time or times when the bonuses were credited on their books to McCabe to pay a draft drawn on such credits. Neither is there evidence to show that the corporations had the cash available at any time prior to 1925. Those credits still remained on the books at the beginning of 1925. The Commissioner has determined that McCabe received them in 1925. We find no evidence in the record justifying us to hold that the Commissioner erred. It is true that there was testimony to indicate that McCabe authorized the crediting, into the capital account of the corporation organ*1381ized in 1925, oí the two bonus credits on the books of the Salamanca Furniture Works (at least the amount so credited to the capital account equaled those two bonus credits), but we are unable to determine what became of the two bonus credits on the books of the Sala-manca Panel Company. McCabe received a large part of the stock of the new corporation, the value of which .at date of its receipt is not disclosed. The Commissioner charged McCabe with constructive receipt of $66,326.59. We think the evidence clearly shows that the aggregate of the four bonus items credited to McCabe was $64,389.30, and no more, hence, the amount should be changed from $66,326.59 to $64,389.30, and with that correction we approve the determination of the Commissioner on that issue. Judgment will he entered under Rule 50.

2020-11-20 19:23:51.660499+00

Estate of Joseph A. Barry, Sr., Marie A. Barry, Co-executrix, and Joseph A. Barry, Jr., Co-executor v. Commissioner. Estate of Barry v. Commissioner Docket No. 48378. United States Tax Court T.C. Memo 1956-97; 1956 Tax Ct. Memo LEXIS 199; 15 T.C.M. (CCH) 502; T.C.M. (RIA) 56097; April 27, 1956 *199 Leon Meltzer, Esq., for the petitioners. WITHEY Memorandum Findings of Fact and Opinion WITHEY, Judge: Respondent determined a deficiency in estate tax in the amount of $52,226.83 for the estate of Joseph A. Barry, Sr., deceased. The issues presented for our decision are the correctness of the respondent's action in determining (1) that the fair market value of the decedent's interest in certain real property was $49,340.26 on January 7, 1949, and (2) that the interest of the decedent's wife in a testamentary trust is not a deductible property interest within the meaning of section 812(e)(1)(F) of the Internal Revenue Code of 1939. General Findings of Fact A portion of the facts have been stipulated and are found accordingly. Joseph A. Barry died on January 7, 1949. The decedent's will was admitted to probate in the Register of Wills Office of Philadelphia County, Pennsylvania, on January 14, 1949, and on that date letters testamentary were issued to his widow, Marie A. Barry, and his son, Joseph A. Barry, Jr. The Federal estate tax return of the estate of Joseph A. Barry, Sr., was filed with the collector of internal revenue for the first district of Pennsylvania*200 on April 6, 1950. Issue 1. Property Valuation Findings of Fact At the time of his death, decedent was the owner of premises located at 222 South Eighth Street, Philadelphia, Pennsylvania, upon which there were two buildings, one of which was a 3-story building erected in 1860 and located on the rear of the lot. The land contained an area of 6,401 square feet with a frontage of 25 feet on Eighth Street. On February 17, 1946, decedent leased the property to Rosatto-Barry Company, a partnership consisting of himself and his two sons, at a rental of $250 per month. The lease was for a term of 20 years and was to continue from year to year thereafter until terminated by either party. The lease agreement permitted the lessees to erect improvements at their own expense without obtaining permission of the lessor but provided that such additions and improvements were to revert to the lessor upon termination of the lease. During 1946 and 1947, the lessees erected on the property a modern one-story brick building at a cost of $43,658.52. The floor area of the building was approximately 3,470 square feet and was covered with asphalt tile. The building was steamheated and had fluorescent*201 lighting. It had a modern bulk window which fronted on Eighth Street. The property was used by the Rosatto-Barry Company for offices and for the manufacture, display and sale of pool tables. In the estate tax return filed on behalf of the estate of Joseph A. Barry, Sr., the decedent's interest in the premises at 222 South Eighth Street, Philadelphia, was valued at $15,000. Moreover, decedent's one-third partnership interest in the leasehold improvements erected on the property by the Rosatto-Barry Company were included in the estate tax return at a valuation of $14,552.84. At the time of decedent's death, the lease on the property at 222 South Eighth Street, Philadelphia, had approximately 17 years to run. The net rental realized by decedent from said premises was $1,940 per year. The fair market value of the decedent's interest in the foregoing property on January 7, 1949, was $22,500. Opinion The respondent has determined that the fair market value of the decedent's interest in the above-described property on January 7, 1949, was $49,340.26, and consequently that the gross estate of Joseph A. Barry should be increased by $34,340.26. Petitioners contend that the fair market*202 value of decedent's interest as of January 7, 1949, was $21,066.66 and that his gross estate should be increased by an amount not in excess of $6,066.66. After carefully considering all of the evidence bearing on the question, including the testimony as to value of a witness offered by petitioners, we have concluded and found as a fact that the fair market value of the decedent's interest in the property on January 7, 1949, was $22,500. Issue 2. Qualification for Marital Deduction Findings of Fact At the time of his death, decedent's assets included interests in a variety of business enterprises in addition to real estate, stocks, bonds and mortgages. The will of decedent, executed on or about April 29, 1948, contained the following provisions: "FIFTH: I give, devise and bequeath my one-third interest in Rosatto-Barry Company to my executors, IN TRUST NEVERTHELESS, to operate said interest in my place and stead and all funds or monies received from said one-third interest are to be paid over by them into the general trust fund created in the next paragraph of this my will. Upon the death of my wife, Marie A. Barry, my one-third interest in said Rosatto-Barry Company shall*203 be offered for sale at a fair price to the remaining owners of said Rosatto-Barry Company, and the monies so received from said sale are to be added to the corpus of the general trust hereinafter created. "SIXTH: All the rest, residue and remainder of my estate composed of bank accounts in my name other than bank accounts which I have with my wife, stock, bonds, mortgages, including that on the bowling alleys at South Juniper Street, Philadelphia, Pennsylvania, the conditional sales contract on my Pennsgrove, New Jersey property, my interest in Mapleway Company and other businesses operated by me as bowling alleys or otherwise, including the Circle Bowling Alleys at 4671 Darrah Street, Frankford, Philadelphia, Pennsylvania, and all other real estate of which I may die seized, all revenue from any business in which I am engaged until the same might be disposed of and any other thing of interest and particularly rent from the lease of property situate 222 S. 8th Street, Philadelphia, Pennsylvania, and including the Kinzer Manufacturing Company located at Flourtown, Pennsylvania, unto my wife, Marie A. Barry, and my son, Joseph A. Barry, Jr., IN TRUST NEVERTHELESS, to manage any of*204 my businesses in person or by agent, to rent, mortgage, and to sell only if to the best advantage and interest of the estate, to invest and reinvest the principal and to divide the income therefrom as follows: "(a) Forty (40%) per cent. to my wife, Marie A. Barry, during the term of her natural life, and at her death the right to dispose of the said 40% income, or 40% of the corpus of the trust, under the terms of her will; but it is my desire that she not make such provisions that will necessitate the sale of assets immediately after her death which might tend to defeat the purpose of the general trust which I have herein created. "(b) Twelve and one-half (12 1/2%) per cent. to my daughter, Marie T. Kazal. "(c) Twelve and one-half (12 1/2%) per cent. to my son, James J. Barry. "(d) Seven and one-half (7 1/2%) per cent. to my son, William F. Barry. "(e) Seven and one-half (7 1/2%) per cent. to my son, Joseph A. Barry, Jr. "(f) Twenty (20%) per cent. of said income to be divided equally among all my grandchildren living at the time of my decease, share and share alike, to be used by William F. Barry for his children, Joseph A. Barry, Jr., for his children and Marie T. Kazal*205 for her children, for their education. In the event of the death of their father or mother, as the case may be, or the removal or resignation of their father or mother, the distribution of income by their guardian will be subject to the approval of my trustees or executor and executrix, as the case may be. "SEVENTH: In the event that any of my grandchildren dies after my death before the youngest of said grandchildren arrives at the age of 25 years, his or her share of income shall be used for the benefit of the surviving brothers and sisters of the said deceased grandchildren. In the event that there are no surviving brothers or sisters of any deceased grandchild, his or her share shall be divided equally among his or her surviving cousins. "EIGHTH: In the event that my son, James J. Barry, dies intestate, his said twelve and one-half (12 1/2%) per cent. income shall revert to the trust estate. However, in the event that my son, James J. Barry, dies testate, he may in his will direct the distribution of his said twelve and one-half (12 1/2%) per cent. income among the life tenants and remaindermen of my trust estate in any manner he pleases but any bequests of income outside of*206 the aforementioned life tenants and remaindermen shall be void and the excess revert to the estate. "NINTH: In the event of the death of any of my other children, the said deceased child's share of income and/or corpus of this trust represented by the percentage interest herein given to my said children shall be given to the surviving children of any deceased child of mine, in equal shares. However, in the event that any of my other children shall not at the time of his or her death leave children him or her surviving, then said deceased child's interest shall pass to and be divided equally between my surviving children. "TENTH: At the time my youngest grandchild reaches the age of 25 years, the trust hereinabove created and referred to shall cease, and all assets held by said trust shall be sold and divided among the surviving children and grandchildren as their interests may appear by reference to the above enumerated percentages, or any change in them caused by the death of any of my children and/or grandchildren. "ELEVENTH: All the income in the various trusts set forth under Clause SIXTH, sections (a) to (f), inclusive, shall be paid quarterly; and shall be free and clear*207 of the respective recipient's debts, contracts, engagements, alienations and anticipation and free and clear of all levies, attachments, executions and sequestrations." In the Federal estate tax return filed on behalf of Joseph A. Barry, a total marital deduction was claimed in the amount of $149,769.41. The foregoing amount included a deduction of $113,462.71 representing the value of the fractional interest of decedent's wife in the assets of the general trust fund created under Clause SIXTH of the decedent's will. The respondent has allowed a marital deduction of only $32,863.59, disallowing the aforementioned amount of $113,462.71, as adjusted. On January 5, 1955, after the institution of the instant proceeding, the petitioners, as trustees of the decedent's estate, filed an account with the Orphans' Court of Philadelphia County, Pennsylvania. Pursuant to the audit of the account, the petitioners requested the Orphans' Court to adjudicate the question of whether the decedent created one trust or several trusts of his residuary estate under Clause SIXTH of his will. Petitioners further requested the Orphans' Court to grant them permission to divide the general trust fund created*208 thereunder into two or more separate funds for purposes of administration. On December 27, 1955, the Orphans' Court issued an adjudication confirming the trustees' account and stating as follows: "Under the provisions of the will quoted above * * * the Auditing Judge is of the opinion and so finds that the testator created several separate and distinct trusts of the various fractional interests designated in subdivision (a), (b), (c), (d), (e), and (f) in Clause SIXTH of the will and that the trustees are entitled to divide the general trust fund into two or more separate funds for purposes of general administration in the event that they should deem it necessary. * * *" Opinion In Clause SIXTH of the will, the decedent left the residue of his estate in trust. He directed that all of the trust property be administered as a single fund, the income from which is to be divided among several beneficiaries. The respondent has taken the position that the decedent created a single testamentary trust and that the interest of his widow therein does not qualify for the marital deduction within the meaning of section 812(e)(1)(F) of the 1939 Code 1 because she is not entitled for life*209 to all the income from the corpus of the trust and does not have the power to appoint the entire corpus free of the trust. Petitioners contend, however, that the decedent created several separate and distinct trusts of the various fractional parts of the residual estate, as enumerated in subparagraphs (a) through (f) of Clause SIXTH of the will, and that under the terms of one of the trusts (subparagraph (a)), the decedent's spouse is entitled to all of the trust income for life with the general power thereafter to appoint the corpus by will. Petitioners therefore urge that the property constituting the corpus of this trust qualifies for the marital deduction under section 812(e)(1)(F) of the 1939 Code. *210 In support of his position, the respondent relies upon our decisions in Estate of Louis B. Hoffenberg, 22 T.C. 1185">22 T.C. 1185, and Estate of Arthur Sweet, 24 T.C. 488">24 T.C. 488. However, we are of the opinion that the situations presented in those cases are factually distinguishable from the situation before us. Resolution of the question whether one or more trusts were created depends upon the intention of the decedent as disclosed by the provisions of the will in the light of the circumstances surrounding its execution. The will of Joseph A. Barry, Sr., refers to the trust in the singular ten times, and by such phrases as "the trust estate," "my trust estate," "this trust," "the trust," "the general trust," and "the general trust fund." In Clause FIFTH of the will the decedent speaks of "the general trust fund created in the next paragraph of this my will," and "the general trust fund hereinafter created." The assets of the decedent at the time of his death included interests in a variety of business enterprises, in addition to stocks, bonds, mortgages and real estate. The two phrases in Clause FIFTH, referring to "the general trust," would indicate an intention that these*211 assets be managed as a single fund in order to obtain uniform production and distribution of income to the several beneficiaries. In Clause SIXTH, subparagraph (a), relating to the trust created in favor of his wife in 40 per cent of the general trust assets, the decedent again speaks of "the general trust which I have herein created." In Clause ELEVENTH of the will, the following reference appears: "All the income in the various trusts set forth under Clause SIXTH, sections (a) to (f) inclusive, shall be paid quarterly * * *." [Italics added.] The fact that the decedent provided different schemes of gifts over in the event of the death of the several beneficiaries is further evidence of his intention to create multiple trusts. The beneficiaries of the several trusts were the decedent's wife, children and grandchildren. With the exception of the trust for the benefit of his wife, the will provided that all trusts would terminate when the decedent's youngest grandchild reaches age 25. It also provided that if any grandchild should die before the youngest grandchild reaches 25, his share of income and ultimately of principal shall go to his or her surviving brothers and sisters. *212 The foregoing provision for gifts over in the event of the death of a grandchild differs from the provision for gifts over in the event of the death of decedent's children. In the event of the death of decedent's son, James, his share shall go to such other beneficiaries as he may by will determine and if he should die intestate, his share would revert to the general trust fund. However, in the event of the death of any of the decedent's other children, his or her share shall go to his or her surviving children; but in the event of death without children, the share will pass to his or her surviving brothers and sisters. With respect to the trust created in favor of the decedent's widow, there is no provision for gift over if she should die prior to the time when the youngest grandchild attains age 25. Instead, she is given a general power to appoint the corpus of the trust by will. Moreover, the will provides a different termination date for the fractional interest comprising the trust for the benefit of the decedent's wife, inasmuch as she may by will appoint the entire corpus free of the trust. This provision for the earlier termination of the interest of the wife in the trust*213 property is a further indication that the decedent intended his wife's undivided interest in the residual assets to constitute the corpus of a separate trust. The different termination dates provided, the different provisions made for gifts over in the event of the death of the several beneficiaries, together with the express reference to "the various trusts set forth under Clause SIXTH, sections (a) to (f), inclusive," persuade us that the dominant intention of the decedent was to create several separate and distinct trusts under Clause SIXTH of his will. The various references to the "trust" in the singular apparently refer to the unitary character of the fund in which he intended the several trusts to be administered. We accordingly hold that the trust created in favor of decedent's wife consisting of 40 per cent of the assets of decedent's residual estate, granting to the wife 40 per cent of the income from such property for life, and vesting in her the right to appoint by will 40 per cent of the residual assets free of the trust, qualifies for the marital deduction within the meaning of section 812(e)(1)(F) of the 1939 Code. Decision will be entered under Rule 50. Footnotes

2020-01-17 22:01:48.136629+00

Love

OPINION. Love: The motion of petitioner’s counsel that the order of the Board extending the respondent’s time to answer in this case be vacated and that judgment be entered for petitioner by default, because'of the failure of the respondent to answer within the time prescribed by the rules of the Board, is denied. The petitioner asserts that the Commissioner is authorized by Congress to assess income and profits taxes for 1919 and 1920 at any time within five years from the time the return was filed, but not thereafter. The Revenue Act of 1926, in effect at the time the deficiency letter was mailed, provides, in section 277 (a) (3), that: The amount of income, excess-profits, and war-profits taxes imposed by * * * the Revenue Act of 1918, and by any such Act as amended, shall be assessed within five years after the return was filed, and no proceeding in *1055court without assessment for the collection of such taxes shall be begun after the expiration of such period. Section 278 (c) of the same Act provides that: Where both the Commissioner and the taxpayer have consented in writing to the assessment of the tax after the time prescribed in section 277 for its assessment the tax may be assessed at any time prior to the expiration of the period agreed upon. The respondent introduced in evidence three “ income and profits-tax waivers,” and the question here turns upon whether or not these consents in writing were effective for the purpose for which they were intended. The first waiver (Respondent’s Exhibit A) is dated “12/12/24” and by its terms the taxpayer and the Commissioner mutually consent to extend the period prescribed by law for the assessment and collection of the amount of income, excess-profits, or war-profits taxes due under any return made by or on behalf of the taxpayer for the years 1918 and 1919 under the Revenue Act of 1924, or under prior acts. The waiver is effective from the date of its execution by the taxpayer, “ and will remain in effect for a period of one year, after the expiration of the statutory period of limitation within which assessments of taxes may be made for the year or years mentioned, or the statutory period of limitation as extended by section 277 (b) of the Revenue Act of 1924, or by any waivers already on file in the Bureau.” This waiver was executed on behalf of Chadbourne & ’Moore, Inc., by Joseph H. Chadbourne, treasurer, and by Everett B. Moore, assistant treasurer, and it bears the seal of the corporation. It was executed also by the Commissioner or on his behalf. On January 14, 1926, the foregoing waiver was followed by two others, each identical with the other in every respect except that one was for the year 1919, while its counterpart covered the year 1920. That for 1919 is as appears below, omitting dating stamps and other notations not material to its effectiveness or consideration: INCOME AND PROFITS TAX WAIVER For Taxable Tears Ended Prior to January 1, 1922 January 14th, 1926. In pursuance of the provisions of existing Internal Revenue’ Raws Chadbourne and Moore, Incorporated, a taxpayer of Boston, Massachusetts, and the Commissioner of Internal Revenue hereby waive the time prescribed by law for mating any assessment of the amount of income, excess-profits, or war-profits taxes due under any return made by or on behalf of said taxpayer for the year (or years) 1919 under existing revenue acts, or under prior revenue acts. This waiver of the time for making any assessment as aforesaid shall remain in effect until December 31, 1926, and shall then expire except that if a notice of *1056a deficiency in tax is sent to said taxpayer by registered mail before said date and (1) no appeal is filed therefrom with the United States Board of Tax Appeals then said date shall be extended sixty days, or (2) if an appeal is filed with said Board then said date shall be extended by the number of days between the date of mailing of said notice of deficiency and the date of final decision by said Board. Chadbotjrne and Moore, Inc. ■Taxpayer [sic] Everett B. Moore [Corporate seal President. impressed hereon] D. H. Blair, Commissioner. If this waiver is executed on behalf of a corporation, it must be signed by such officer or officers of the corporation as are empowered under the laws of the State in which the corporation is located to sign for the corporation, in addition to which, the seal, if any, of the corporation, must be affixed. The petitioner alleges that the enactment of the Revenue Act of 1926 on February 26 of that year voids these two waivers as against the deficiency notice of April 13, 1926, and any later assessments and collection of taxes for 1919 and 1920. We could not state the petitioner’s contention more concisely and clearly than it is set forth in the argument of counsel, whose brief follows in full: It will be noted that all of the waivers introduced in evidence by respondent were executed prior to the enactment of the Revenue Act of 1926. They extended the time by agreement pursuant to existing laws, but not under subsequent. statutes enacted after their execution'. It was a part of the agreement that the waivers should remain in effect under existing laws. The enactment of a new statute, changing petitioner’s rights, privileges and liabilities was not contemplated by the parties and nullified the agreement. The Revenue Act of 1926 changed the provisions under which petitioner’s liability might be calculated, changed the method by which it might be assessed and collected, and changed the procedure, jurisdiction and organization of the Board of Tax Appeals and of the Courts. Petitioner is entitled to insist upon confining the extension of time to the terms of its waiver. It did not consent to such extension except under existing law. This same point arose in the case of Toxaway Mills, Inc. v. United States, 61 Ct. Cls. 363, 5 Am. Fed. Tax Rep. 5714. In that case a waiver was executed prior to the enactment of the Revenue Act of 1921, and additional tax was assessed and collected after the enactment of that Act. Plaintiff sued to recover the amount, claiming that it was collected after the statute of limitations had run. The Government relied upon the waiver. The Court held that ordinarily the waiver would have been voided by the enactment of the new Act, but that, because the parties had treated it as continuing in effect, the Court recognized its validity and dismissed the complaint. The Supreme Court reversed this judgment without an opinion. See subsequent opinion in' the same case, 63 Ct. Cls. 646, 6 Am. Fed. Tax Rep. 6811. The reversal by the Supreme Court can rest upon no other ground than that the waiver was invalid, after the enactment of the Revenue Act of 1921. If the waiver had been valid, the judgment would necessarily have been for the Government, as the tax would have been legally collected, and the plaintiff did not contest it on the merits. *1057Petitioner contests the right of the Commissioner or of this Board to extend its consent in writing to something not consented to, viz: the application of a new statute and the cessation by repeal of the statute under which the consent in writing was executed. Counsel for tbe respondent filed no brief, resting his case upon its merits. Upon those merits, as we see them, we must find in this issue for the respondent. The waivers filed by the petitioner grant to the Commissioner no rights of assessment and collection beyond those contained in the Kevenue Act of 1924, and prior acts, or in waivers already on file in the Bureau, and they expired by express limitation on December 81,1926. If, therefore, the Commissioner had determined the asserted deficiency and proposed to assess the tax under the provisions of the Kevenue Act of 1926, we might be constrained to hold that the waivers here in question were not effective to convey such authority. However, as we view the facts in the case, they are free from any complications of that kind that might have been introduced by such a purpose on the part of the Commissioner. The pleadings of the petitioner contain a copy of the deficiency notice dated April 13, 1926, accompanied by a statement of returns examined and resulting tax liability, which statement appears below: Deficiency Company Form Year in tax Chadbourne and Moore, Inc., Boston, Massachusetts- 1120 1919 $8, 552. 45 1120 1920 9,271.29 17, 823.74 The adjustments producing the above change in your tax liability are set forth in schedules attached to Bureau letter dated December 19, 1925, and were based upon the Revenue Agent’s report dated April 26, 1923, copy of which has been furnished you. The information submitted in connection with your predecessor partnership has been considered in arriving at the above determination. Consideration has been given to the statements contained in your several briefs and in conferences held in thisi office, but nothing contained therein warrants the modification of the adjustments set forth in Bureau letter referred to above. Waivers expiring December 31, 1926, are on file for the calendar years 1919 and 1920. From this it appears that the deficiency proposed by the Commissioner on April 13,1926, had been computed not later than December 19, 1925, upon the basis of a revenue agent’s report dated April 26, 1923. It is thus apparently certain that these taxes for 1919 and 1920 were computed under the provisions of the Kevenue Act of 1921, and we therefore hold these waivers valid-to extend the time for the assessment of taxes for those years to December 31,1926, not*1058withstanding that the Revenue Act of 1926 had been approved before the date of the deficiency notice. This case is distinguished in several respects from that of Toxaway Mills cited supra by the respondent, but in none in which we think that either the opinion of the Court of Claims or the reversal of its decision by the Supreme Court of the United States should influence or control our decision here. It is true that in Toxaway Mills the waiver was executed on February 10, 1921, after the provisions of Titles II and III of the Revenue Act of 1921, approved November 23, 1921, had been made retroactively effective from January 1 of that year; and that the waivers here under discussion were executed in January, 1926, while the 1926 Act did not take effect until the latter part of February of that year; but in view of the fact that it has not been shown that the passage of that Act had any bearing or influence at all upon the Commissioner’s determination of the amount of the deficiency, we hold that such difference in circumstance is not material here. The Commissioner was expressly authorized by this petitioner to determine and assess its taxes for 1919 and 1920 (under then existing acts and waivers) at any time prior to the expiration of December 31, 1926. The limitation period having been extended under statutes in force at the time of the execution of the waivers, section 218 (c) of the Revenue Act of 1926 specifically takes care of the situation and authorizes assessment at any time prior to the termination of the extended period. Accordingly, we hold that these waivers were valid for the purpose for which they were executed and did so extend the time for determination and assessment of the taxes for 1919 and 1920 to and including December 31, 1926. The case will be restored to the day calendar for hearing upon the other questions at issue.

2020-12-02 07:14:38.404504+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=16682&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa05%5cOpinion

DENIED and Opinion Filed November 24, 2020 In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00927-CV IN RE NATHAN NATHANIEL RENDER, Relator Original Proceeding from the 291st Judicial District Court Dallas County, Texas Trial Court Cause No. F08-45177-TU MEMORANDUM OPINION Before Justices Myers, Molberg, and Evans Opinion by Justice Myers Nathan Nathaniel Render has filed a petition for writ of mandamus requesting the Court consider seven issues arising from his 2009 trial. We deny relief. A petition seeking mandamus relief must contain a certification stating that the relator “has reviewed the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record.” TEX. R. APP. P. 52.3(j). Relator’s petition contains an unsworn declaration stating that he is incarcerated and declares “under penalty of perjury that the foregoing legal document and facts therein are true and correct to the best of my knowledge.” Thus, relator’s petition is not certified properly. See id.; In re Butler, 270 S.W.3d 757 , 758 (Tex. App.—Dallas 2008, orig. proceeding). Rule 52.3(k)(1)(A) requires the relator to file an appendix with his petition that contains “a certified or sworn copy of any order complained of, or any other document showing the matter complained of.” TEX. R. APP. P. 52.3(k)(1)(A). Rule 52.7(a)(1) requires the relator to file with the petition “a certified or sworn copy of every document that is material to the relator’s claim for relief that was filed in any underlying proceeding.” TEX. R. APP. P. 52.7(a)(1). Relator has attached to his petition copies of the indictment, a motion to amend the indictment, an outcry notice, several pages taken from a reporter’s record, some correspondence, and several newspaper articles. None of the documents are certified or sworn copies as required by rules 52.3 and 52.7. As the party seeking relief, relator has the burden to provide the Court with a sufficient record to establish his right to mandamus relief. Walker v. Packer, 827 S.W.2d 833 , 837 (Tex. 1992) (orig. proceeding). Because the documents in his appendix are not properly authenticated, relator has not shown his entitlement to relief. See Butler, 270 S.W.3d at 759 . Finally, relator’s petition collaterally attacks his final felony conviction and seeks what should be characterized as article 11.07 habeas relief. See TEX. CODE CRIM. PROC. ANN. art. 11.07, §1; Ater v. Eighth Court of Appeals, 802 S.W.2d 241 , 243 (Tex. Crim. App. 1991) (orig. proceeding); In re Ayers, 515 S.W.3d 356 , 356– –2– 57 (Tex. App.—Houston [14th Dist.] 2016, orig. proceeding) (per curiam); see also In re Jones, No. 01-20-00490-CR, 2020 WL 4210489 , at *1 (Tex. App.—Houston [1st Dist.] July 23, 2020, orig. proceeding) (mem. op, not designated for publication). We do not have jurisdiction to consider an original application for writ of habeas corpus arising from a criminal proceeding. See TEX. CODE CRIM. PROC. ANN. art. 11.05; TEX. GOV’T CODE ANN. § 22.221(d); Ayers, 515 S.W.3d at 356 –57. Furthermore, we do not have jurisdiction to grant article 11.07 relief. See TEX. CODE CRIM. PROC. ANN. art. 11.07, §§3, 5; Bd. of Pardons and Paroles ex rel. Keene v. The Eighth Court of Appeals, 910 S.W.2d 481 , 483 (Tex. Crim. App. 1995) (orig. proceeding); see also In re Morrison, No. 05-15-00519-CV, 2015 WL 1910329 , at *1 (Tex. App.—Dallas Apr. 28, 2015, orig. proceeding) (mem. op.) (court of appeals has no jurisdiction over complaints that should be raised in post-conviction 11.07 writ application). –3–  Because of the deficiencies in relator’s petition and our inability to grant mandamus relief, we deny relator’s petition for a writ of mandamus. 1 /Lana Myers/ LANA MYERS JUSTICE 200927F.P05 1 Relator’s pro se petition and appendix contains the unredacted name of the minor victim of his offense in violation of the rules of appellate procedure. See TEX. R. APP. P. 9.9. Because relator failed to redact this sensitive data, the Clerk of the Court has removed the petition and attached appendix from the Court’s website. See TEX. R. APP. P. 9.9(e). –4–

2020-12-02 07:14:39.036288+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=16720&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa05%5cOpinion

CONDITIONALLY GRANT and Opinion Filed November 24, 2020 S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00696-CV IN RE J&S UTILITIES, LLC, Relator Original Proceeding from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. DC20-03204A MEMORANDUM OPINION Before Chief Justice Burns, Justice Myers, and Justice Evans Opinion by Justice Evans In this mandamus proceeding, relator J&S Utilities, LLC seeks relief from the trial court’s May 29, 2020 Order on Plaintiffs’ Summary Motion to Remove Invalid Lien (“Order”) filed by real parties in interest MSV Natitex, LLC (“MSV”) and Natitex, Ltd. (“Natitex”). We conditionally grant relator’s petition for writ of mandamus. BACKGROUND J&S Utilities served as a subcontractor and MSV as the developer/general contractor on two real estate development projects. Natitex was the owner of one of the properties. J&S Utilities filed two mechanic’s and materialman’s liens for alleged unpaid work for the projects. MSV and Natitex filed a lawsuit seeking to remove the two liens. On April 9, 2020, MSV and Natitex filed a summary motion to remove the invalid lien and affidavit in support pursuant to Chapter 53 of the Texas Property Code. The summary motion was set for a hearing on May 29, 2020. The notice of hearing provided that the hearing was to take place “via video conference or telephonically.” On May 28, 2020, J&S Utilities filed a response to the summary motion. Shortly before the hearing, J&S Utilities was notified that the summary motion would be heard by submission because no timely response had been filed. On May 29, 2020, the trial court entered the Order which noted that “[n]o response to the Motion was filed” and granted the summary motion to remove the liens. J&S Utilities filed a motion for reconsideration of the Order. At the June 25, 2020 hearing on the motion for reconsideration, the trial court noted that the Dallas County Local Rules require responses to be filed within three business days of the hearing. J&S Utilities argued that even if the response was disregarded under the local rules, it was still allowed under the Texas Property Code to present evidence at a hearing in response to the summary motion. The trial court offered J&S Utilities the option of reimbursing MSV and Natitex for their attorney’s fees incurred in preparing the summary motion and motion for reconsideration in exchange for granting the motion to reconsider. J&S Utilities declined. On June 30, 2020, the –2– trial court denied the motion for reconsideration. This mandamus proceeding then followed. ANALYSIS A. Standard of Review To obtain mandamus relief, a relator must show both that the trial court has clearly abused its discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124 , 135–36 (Tex. 2004) (orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the facts. In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300 , 302–03 (Tex. 2016) (orig. proceeding) (per curiam). In determining whether relator has an adequate remedy by appeal, we assess the adequacy of an appellate remedy by balancing the benefits of a mandamus review against the detriments. In re Team Rocket, L.P., 256 S.W.3d 257 , 262 (Tex. 2008) (orig. proceeding). In evaluating benefits and detriments, we consider whether mandamus will preserve important substantive and procedural rights from impairment or loss. Id. B. Abuse of Discretion Section 53.160 of the Texas Property Code governs summary motions to remove invalid or unenforceable liens: –3–  (a) In a suit brought to foreclose a lien or to declare a claim or lien invalid or unenforceable, a party objecting to the validity or enforceability of the claim or lien may file a motion to remove the claim or lien. The motion must be verified and state the legal and factual basis for objecting to the validity or enforceability of the claim or lien. The motion may be accompanied by supporting affidavits. *** (c) The claimant is not required to file a response. The claimant and any other party that has appeared in the proceeding must be notified by at least 21 days before the date of the hearing on the motion. A motion may not be heard before the 21st day after the date the claimant answers or appears in the proceeding. (d) At the hearing on the motion, the burden is on: (1) the claimant to prove that the notice of claim and affidavit of lien were furnished to the owner and original contractor as required by this chapter; and (2) the movant to establish that the lien should be removed for any other ground authorized by this section. TEX. PROP. CODE § 53.160 (emphasis added). The statute explicitly states that the claimant is not required to file a response to the summary motion. See id. § 53.160(c). In addition, the statute authorizes the claimant to prove certain facts at the hearing, which could only occur at an evidentiary hearing and without regard to whether the claimant filed a response. See id. § 53.160(d)(1). The statute does not contain any indication that claimant forfeits its right to an evidentiary hearing by electing not to file a response. In this case, J&S Utilities filed a response to the summary motion the day before the hearing which failed to comply with Dallas County Local Rule 2.09: –4–  Except in case of emergency, briefs, responses and replies relating to a motion (other than for summary judgment) set for hearing must be served and filed with the Clerk of the Court no later than three working days before the scheduled hearing. Dallas County Civ. Ct. Loc. R. 2.09. J&S Utilities argues that it was entitled to an evidentiary hearing under the Texas Property Code regardless of whether the trial court elected to disregard the late-filed response. We agree. A local civil court procedural rule does not take precedence over the requirements of a state statute. Global Gen. Constr. Servs., LLC v. Jones, No. 04-12-00701-CV, 2013 WL 1908388 , at *3 (Tex. App.—San Antonio May 8, 2013, no pet.) (mem. op.) (“Nonetheless, even if the local rules for Travis County courts at law could be construed to allow relaxed evidentiary and procedural rules on appeal from a small claims court, section 28.053 of the Government Code trumps the application of the local rules.”); City of Pasadena, Tex. v. de los Santos, No. 01-98-00104-CV, 1999 WL 339335 , at *6 (Tex. App.—Houston [1st Dist.] May 27, 1999, pet. denied) (not designated for publication). As stated above, the statute allows for an evidentiary hearing regardless of whether claimant elected to file a response. See TEX. PROP. CODE § 53.160(c), (d). Although the trial court may have had the option of disregarding J&S Utilities’ response under its local rules, the trial court did not have the right to make a determination on submission and forfeit J&S Utilities’ right to an evidentiary hearing. For these reasons, we conclude the trial court abused its discretion by denying J&S Utilities an evidentiary hearing. –5–  B. No Adequate Appellate Remedy MSV and Natitex argue that J&S Utilities has an adequate remedy at law because it can still pursue its claims at trial and that “Relator’s arguments that the Order’s temporary removal of Relator’s Liens cannot be cured on appeal are the same ones that every claimant could make if a trial court temporarily removed its mechanic’s liens.” While we agree that the property code does not allow for interlocutory appeals from the court’s order on a summary motion, we disagree that J&S Utilities is in the same position as other claimants seeking to appeal the court’s order. See TEX. PROP. CODE § 53.160(e). Here, J&S Utilities is not challenging the merits of the Order, it is challenging the court’s decision to bypass an evidentiary hearing which prevented it from presenting its evidence. As a result, the trial court rendered its decision without an evidentiary hearing that J&S Utilities was entitled to have by statute. See TEX. PROP. CODE § 53.160(c), (d). Due process at a minimum requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner. In re V.K., 607 S.W.3d 471 , 480 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding). The legislature provided for J&S Utilities’ due process rights by the statutory procedure that was enacted, but which the trial court denied to J&S Utilities and which cannot be cured by a subsequent appeal. Mandamus relief, however, will preserve J&S Utilities’ statutory right to an evidentiary hearing on the summary motion. The benefits of granting mandamus –6– relief outweigh the detriments. Accordingly, we conclude J&S Utilities does not have an adequate remedy by appeal. CONCLUSION We hold that J&S Utilities has established that the trial court abused its discretion by refusing to hold an evidentiary hearing on the summary motion and it has no adequate remedy by appeal. We conditionally grant the petition and direct the trial court to vacate its May 29, 2020 Order on Plaintiffs’ Summary Motion to Remove Invalid Lien and to hold an evidentiary hearing on the summary motion. The writ will issue only if the trial court fails to act in accordance with this opinion. /David Evans/ DAVID EVANS JUSTICE 200696F.P05 –7–

2020-06-05 09:06:53.299799+00

http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20200604_C346875_38_346875.OPN.PDF

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS TONI WILLIAMS, UNPUBLISHED June 4, 2020 Plaintiff-Appellant, v No. 346875 Wayne Circuit Court NATIONWIDE MUTUAL FIRE INSURANCE LC No. 17-016051-NF COMPANY, Defendant-Appellee. Before: LETICA, P.J., and STEPHENS and O’BRIEN, JJ. PER CURIAM. Plaintiff, Toni Williams, appeals as of right1 the trial court’s order granting defendant, Nationwide Mutual Fire Insurance Company, summary disposition on plaintiff’s claim for no-fault benefits under MCR 2.116(C)(10) (no genuine issue of material fact) because plaintiff submitted false information in support of her claim. We affirm. This appeal has been decided without oral argument pursuant to MCR 7.214(E). I. BACKGROUND In December 2016, a car struck plaintiff while she was crossing a street on foot, causing her severe injuries. Because the driver who struck plaintiff was uninsured, plaintiff filed an application for Personal Injury Protection (PIP) benefits with the Michigan Automobile Insurance Placement Facility (the MAIPF) in January 2017. The MAIPF assigned plaintiff’s claim to defendant thereafter. After her release from the hospital, physicians informed plaintiff that she would require 12 hours of attendant care services per day. Plaintiff’s two daughters, Daphne and Tiffany, agreed to 1 We previously denied defendant’s motion to dismiss plaintiff’s appeal. Williams v Nationwide Mut Fire Ins Co, unpublished order of the Court of Appeals, entered March 20, 2019 (Docket No. 346875). -1- each provide six hours of attendant care per day. In support of her claim for reimbursement of those attendant-care services, plaintiff submitted two affidavits of attendant care, which reflected that this arrangement was in place from February 14, 2017 through August 31, 2017. The affidavits also reflected that plaintiff agreed to pay each daughter $15 per hour for the attendant care provided. Both Daphne and Tiffany signed the notarized affidavits on September 20, 2017, and plaintiff signed that she acknowledged them on October 4, 2017. In addition to the two affidavits, plaintiff submitted a more detailed accounting of the attendant care services she received from Daphne in 2017, on forms provided by Home Health Care Services of Michigan. These forms reflected a detailed accounting of the dates and times during which Daphne provided attendant care services to plaintiff from January through May 2017. These forms generally reflected that Daphne provided 8 hours of daily care from 6 a.m. to 2 p.m., with some days off, and occasionally provided 16 hours of daily care from 6 a.m. until 10 p.m. on weekends. On three of the ten forms, both plaintiff and Daphne signed on the last day of the time period reflected. On six forms, plaintiff signed on the last day of the time period reflected and Daphne signed later, but always by the end of the month. And, on one form, plaintiff signed in the middle of the period for which services were provided while Daphne provided the dates of the time period reflected. During her deposition in August 2018, Daphne testified that she worked as a line cook at the airport between 2 p.m. and 8 or 9 p.m., four or five days a week and on occasional weekends. For the period between February 14 and August 13, 2017, Daphne testified that, while she had no “set schedule,” she would usually care for plaintiff in the morning, typically around 8 or 9 a.m. Daphne then testified that she stayed with plaintiff until plaintiff’s transportation arrived at 11 a.m. or noon. After Daphne ended her shift at the airport, she would return to plaintiff’s home, at about 9 or 10 p.m., and continue to provide attendant care services to plaintiff. Daphne confirmed that she had signed the Home Health Care forms provided by plaintiff, filled them out, and witnessed plaintiff signing them. Consistent with the Home Health Care forms, Daphne testified that she arrived at 6 a.m. and left at 2 p.m. on the days she reported in the forms. Daphne further testified that she simply told her employer that she “might be late.” Daphne also testified that she occasionally cared for plaintiff for 16 hours on some days. Daphne confirmed that the Home Health Care form and the affidavit submitted to defendant were inconsistent with each other, and that it was likely the affidavit, not the more detailed form, was accurate. During plaintiff’s deposition, plaintiff likewise testified that Daphne and Tiffany did not have a set schedule for when they provided attendant care; instead, they cared for her when they could. Plaintiff confirmed that she signed the affidavits of attendant care to acknowledge their accuracy, and, when presented with them during her deposition, plaintiff confirmed that they were accurate. Plaintiff also testified that the signatures on the Home Health Care forms appeared to be hers, but claimed not to remember the forms themselves. Plaintiff also confirmed that the Home Health Care forms were not accurate and that the affidavits were accurate. Plaintiff filed a complaint for no-fault benefits when defendant denied her coverage. After discovery, defendant moved for summary disposition under MCR 2.116(C)(10), arguing that plaintiff was barred from receiving benefits under MCL 500.3173a because she made materially -2- false statements in support of her application for benefits to the MAIPF. The trial court granted defendant’s motion and determined that plaintiff was ineligible for any no-fault benefits after concluding that the accounting of Daphne’s attendant care services was a fraudulent insurance act. This appeal followed. II. DISCUSSION On appeal, plaintiff argues that the trial court erred in granting summary disposition because there were still genuine issues of material fact as to whether she had knowledge of her misrepresentations to defendant and whether those misrepresentations were material to plaintiff’s claim for no-fault benefits. We disagree. A. STANDARD OF REVIEW “A trial court’s decision regarding a motion for summary disposition is reviewed de novo.” Sullivan v Michigan, 328 Mich. App. 74 , 80; 935 NW2d 413 (2019). “Under MCR 2.116(C)(10), summary disposition is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” Piccione v Gillette, 327 Mich. App. 16 , 19; 932 NW2d 197 (2019) (quotation marks omitted). We “must review the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party.” Id. (quotation marks omitted). And, all reasonable inferences arising from the circumstantial evidence must be construed in favor of the non-movant. West v Gen Motors Corp, 469 Mich. 177 , 183-184; 665 NW2d 468 (2003). “A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” Piccione, 327 Mich. App. at 19 (quotation marks omitted). A court may not “make findings of fact; if the evidence before it is conflicting, summary disposition is improper.” Id. (quotation marks and emphasis omitted). Nor may the court weigh credibility in deciding a summary disposition motion. Skinner v Square D Co, 445 Mich. 153 , 161; 516 NW2d 475 (1994). We review questions of statutory interpretation de novo. Edw. C. Levy Co v Marine City Zoning Bd of Appeals, 293 Mich. App. 333 , 339; 810 NW2d 621 (2011). “The primary goal of statutory interpretation is to give effect to the intent of the Legislature.” Briggs Tax Serv, LLC v Detroit Pub Sch, 485 Mich. 69 , 76; 780 NW2d 753 (2010). The best indicator of the Legislature’s intent is the statute’s language, which, if clear and unambiguous, we must apply as written. Ford Motor Co v City of Woodhaven, 475 Mich. 425 , 438-439; 716 NW2d 247 (2006). B. ANALYSIS We conclude that the trial court properly granted summary disposition to defendant because plaintiff committed a fraudulent insurance act when she submitted false information in support of her claim for no-fault benefits. There was no genuine issue of material fact that plaintiff had knowledge that the Home Health Care forms Daphne prepared and plaintiff signed contained false information at the time she submitted them in support of her claim. Additionally, the Home Health Care forms reflecting the times and dates Daphne provided attendant care services to plaintiff were material to plaintiff’s claim for benefits because they were related to the payment both of her daughters would have received from defendant. -3-  In pertinent part, the No-Fault Act2 stated: A person who presents or causes to be presented an oral or written statement, including computer-generated information, as part of or in support of a claim to the Michigan automobile insurance placement facility for payment or another benefit knowing that the statement contains false information concerning a fact or thing material to the claim commits a fraudulent insurance act under [MCL 500.4503] that is subject to the penalties imposed under [MCL 500.4511]. A claim that contains or is supported by a fraudulent insurance act as described in this subsection is ineligible for payment or benefits under the assigned claims plan. [MCL 500.3173a(2).] We have held that “a person commits a fraudulent insurance act under this statute when (1) the person presents or causes to be presented an oral or written statement, (2) which is part of or in support of a claim for no-fault benefits, (3) where the claim for benefits was submitted to the MAIPF. Further, (4) the person must have known that the statement contained false information, and (5) the statement concerned a fact or thing material to the claim.” Candler v Farm Bureau Mut Ins Co, 321 Mich. App. 772 , 780; 910 NW2d 666 (2017) (footnote omitted). “MCL 500.3173a(2) does not require that any particular recipient have received the false statement in order for the act to qualify as a fraudulent insurance act, as long as the statement was used as part of or in support of a claim to the MAIPF.” Id. (quotation marks and alterations omitted). The insurer bears the burden of demonstrating that the plaintiff committed a fraudulent insurance act. See Mina v Gen Star Indem Co, 218 Mich. App. 678 , 681-682; 555 NW2d 1 (1996), rev’d in part on other grounds, 455 Mich. 866 ; 568 NW2d 80 (1997). In Candler, we determined that the plaintiff knew that the calendars he submitted to the MAIPF regarding his replacement services were inaccurate because he had signed or forged his brother’s name onto them. Candler, 321 Mich. App. at 781-782 . We noted that the plaintiff’s counsel conceded that the plaintiff had done so and that the record demonstrated it was factually impossible for the documents to be correct because the plaintiff had moved in with his girlfriend, who had begun to provide the replacement services. Id. at 781. We concluded that, despite the presence of the plaintiff’s head injury, no reasonable jury could have concluded that the plaintiff was unaware that he was submitting false information in support of his claim. Id. at 781-782. In this case, plaintiff first takes issue with the trial court’s ruling that defendant proved the fourth prong of the Candler test—that plaintiff knew that the information Daphne had provided in the Home Health Care forms, which, in turn, plaintiff had provided in support of her claim for no- fault benefits, was false. Candler, 321 Mich. App. at 780 . Plaintiff relies on caselaw in the context of insurance companies seeking to void a policy due to the policyholder’s fraudulent action to generally assert that defendant here was required to prove both knowledge and an intent to defraud. 2 Plaintiff’s claim was submitted and the trial court rendered its decision before the effective date of the 2019 amendments to the No-Fault Act. Under the current No-Fault Act, MCL 500.3173a(2) was redesignated MCL 500.3173a(4) and language was added. 2019 PA 21 , effective June 11, 2019. -4- See, e.g., Mina, 218 Mich. App. at 686 (stating that fraud “implies something more than mistake of fact or honest misstatements on the part of the insured . . . the insurer must prove not only that the [representation] was false, but also that it was done knowingly, wilfully [sic], and with intent to defraud”). However, the plain language of MCL 500.3173a(2) contains no such element of intent. Woodhaven, 475 Mich. at 438-439 . It clearly provides that “[a] person who presents or causes to be presented a[] . . . written statement . . . as part of or in support of a claim to the Michigan automobile insurance placement facility for payment or another benefit knowing that the statement contains false information concerning a fact or thing material to the claim commits a fraudulent insurance act . . . .” MCL 500.3173a(2). Thus, as we concluded in Candler, this statute only requires that the plaintiff “must have known that the statement contained false information.” Candler, 321 Mich. App. at 780 . Accordingly, we reject plaintiff’s interpretation of this statute. In this case, there is no genuine issue of material fact regarding plaintiff having knowledge that the Home Health Care forms Daphne prepared and that plaintiff later signed and used to support her claim for no-fault benefits contained falsehoods. Although plaintiff did not outright prepare the forms, she admitted to signing them during her deposition. And although she said that she did not remember the Home Health Care forms, which are the forms that contained the falsehoods according to plaintiff’s and Daphne’s deposition testimony, plaintiff confirmed that the signatures on all ten forms were hers and that the contents of the forms were inaccurate. There is no reasonable inference to draw on this record that plaintiff could have lacked knowledge that the forms were false at the time she submitted them and that, at the time of her deposition, over a year later, she had only just remembered that they were false. Moreover, both Daphne and plaintiff’s husband indicated that plaintiff coordinated with the insurance company to ensure their payments. This provides strong circumstantial evidence that plaintiff reviewed each form she submitted and would have been aware of any falsehoods. And although plaintiff signed the accurate affidavits in October 2017, which was some time after attendant care allegedly stopped in August 2017, plaintiff signed the inconsistent and false Home Health Care forms around the same time that Daphne prepared each one. Thus, it stands to reason that plaintiff was aware at the time that she signed and submitted the forms that they were inaccurate. Plaintiff notes that, unlike the plaintiff in Candler, the documents she submitted were prepared by a third-party and only contained inconsistencies, not outright forgeries. Plaintiff thus contends that fraud was not apparent at the summary disposition stage. This assertion lacks merit. As the trial court noted, any false statement submitted in support of a claim is a fraudulent insurance action, regardless of whether it is a forgery or inconsistent with other documents. And, as discussed above, although Daphne prepared the forms, the record reflects that plaintiff reviewed and signed them before she submitted them in support of her claim. Additionally, referring to Daphne’s Home Health Care forms as merely inconsistent with the other submitted documents is inaccurate. The deposition testimony from both plaintiff and Daphne establishes that the Home Health Care forms contained false accountings of the times Daphne provided care to plaintiff. Daphne initially testified that she provided approximately three to four hours of care in the mornings and early afternoons before starting her shift at the airport, and then provided care in the evenings, for a total of six hours a day. The record also reflects that Daphne alternated weekends with her sister in providing full days of care for plaintiff. Plaintiff’s husband and Tiffany also confirmed this. However, the Home Health Care forms often indicated that Daphne provided care early in the morning until her shift at the airport started, and, in fact, -5- provided care for eight hours a day. The forms also do not reflect a pattern of Daphne coming back to take care of plaintiff at night after she finished working at the airport. The forms also do not reflect any gap in time accounting for the third-party transportation of plaintiff to her doctors’ appointments. Daphne and Tiffany both testified that plaintiff was transported to her doctors’ appointments in the morning. According to Daphne plaintiff’s transportation arrived around 11 a.m. to noon, and, according to Tiffany, plaintiff would return around 1:30 p.m. This information regarding Daphne and plaintiff’s schedule also conflicts with the Home Health Care forms that consistently show Daphne caring for plaintiff from 6 a.m. until 2 p.m. And, while Daphne, Tiffany, and plaintiff all testified that their schedules varied, the Home Health Care forms reflect Daphne consistently provided plaintiff with care. Moreover, it is notable that Daphne altered her testimony after the forms were presented to her at the deposition, and eventually admitted that the forms were inaccurate. Tiffany’s deposition testimony likewise began at 16 hours of daily attendant care services before falling to 12 hours. Thus, beyond a mere inconsistency, the forms were admittedly an outsized false accounting of the time Daphne spent providing plaintiff with care, as opposed to the time Tiffany and Daphne were supposedly sharing 12 hours of daily care in total. This is similar to the calendar that the Candler plaintiff submitted, reflecting the wrong person providing replacement services. Here, too, Daphne could only be paid for the times that she, as opposed to Tiffany, provided care. And, much like factual impossibility present in Candler, Daphne could not provide care to plaintiff while she was also supposed to be working at the airport—as her initial deposition testimony reflected—or while a third-party transported plaintiff to her doctors’ appointments. Lastly, plaintiff indicates that her injuries prevented her from fully understanding what she was signing. Though plaintiff initially denied any head trauma as a result of the accident, she testified that she was receiving treatment from a neurologist who told her she had a working diagnosis of a brain injury. Plaintiff also testified that she experienced occasional confusion, trouble concentrating, and memory loss, which could have resulted from the aging process or the accident. While this evidence demonstrates that plaintiff had intermittent confusion and memory loss of an undefinable origin, it does not establish that plaintiff was unable to review or lacked the cognitive ability to provide a signature reflecting her review of the ten Home Health Care forms spanning five months. Moreover, this Court in Candler rejected the plaintiff’s contention that a head injury negated his fraudulent insurance act. 321 Mich. App. at 781-782 . While plaintiff here did not actively forge a signature, and, instead, signed off on false information, there is no record evidence suggesting that plaintiff was unaware of or unable to appreciate that Daphne’s forms contained falsehoods at the time that plaintiff signed them. Thus, the trial court correctly determined that plaintiff had knowledge that the forms she submitted in support of her claim for no-fault benefits contained false information. Plaintiff next challenges the establishment of the fifth Candler prong—whether any false statements were material to her claim for benefits. Candler, 321 Mich. App. at 780 . “A statement is material if it is reasonably relevant to the insurer’s investigation of a claim.” Mina, 218 Mich App at 686. A statement is material if it is more likely to be one of the pieces of information relied upon. US Fid & Guar Co v Black, 412 Mich. 99 , 121; 313 NW2d 77 (1981). -6-  Here, the false statements plaintiff submitted were material to defendant’s investigation of her claim. Although there is no dispute that plaintiff was entitled to 12 daily hours of attendant care, how that money was paid out was material to her claim. Specifically, although the total plaintiff requested reflected 12 hours a day of attendant care at a rate of $15 per hour, that care was supposed to be split evenly between plaintiff’s two daughters. And, as Daphne reflected in the more detailed Home Health Care forms that she had often provided eight hours of daily care, that could have impacted the total amount of money Tiffany received. Moreover, Tiffany’s affidavit reflected that she provided six hours of care a day and defendant could have relied on the Home Health Care forms to calculate Daphne’s compensation. In that case, the total amount of money defendant would have had to pay for plaintiff’s attendant care services would have exceeded 12 hours per day. Because the forms submitted were related to the hours that Daphne would be paid for her attendant care services, they were material to defendant’s investigation of plaintiff’s claim. In sum, we conclude that the trial court properly denied plaintiff no-fault benefits after it determined that there was no genuine issue of material fact regarding plaintiff’s commission of a fraudulent insurance act. Affirmed. /s/ Anica Letica /s/ Cynthia Diane Stephens /s/ Colleen A. O’Brien -7-

2021-01-26 21:00:45.554716+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2021/01/26/19-35894.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT STEPHEN W. COLE, No. 19-35894 Plaintiff-Appellant, D.C. No. 1:18-cv-00011-TMB v. MEMORANDUM* ALASKA ISLAND COMMUNITY SERVICES, AKA AICS; et al., Defendants-Appellees. Appeal from the United States District Court for the District of Alaska Timothy M. Burgess, District Judge, Presiding Submitted January 20, 2021** Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges. Stephen W. Cole appeals pro se from the district court’s judgment dismissing his antitrust action. We have jurisdiction under 28 U.S.C. § 1291 . We review de novo a district court’s dismissal for lack of subject matter jurisdiction on the basis of sovereign immunity. Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 824 * 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). F.3d 858, 864 (9th Cir. 2016) (sovereign immunity); Cook v. AVI Casino Enters., Inc., 548 F.3d 718 , 722 (9th Cir. 2008) (tribal sovereign immunity). We may affirm on any basis supported by the record, Thompson v. Paul, 547 F.3d 1055 , 1058-59 (9th Cir. 2008), and we affirm. The district court properly dismissed Cole’s claims against Southeast Alaska Regional Health Consortium and Alaska Island Community Services because those claims are barred by tribal sovereign immunity. See White v. Univ. of Cal., 765 F.3d 1010 , 1025 (9th Cir. 2014) (factors to determine whether an entity is an “arm of the tribe” for purposes of tribal sovereign immunity); see also Pistor v. Garcia, 791 F.3d 1104 , 1111 (9th Cir. 2015) (“In the context of a Rule 12(b)(1) motion to dismiss on the basis of tribal sovereign immunity, the party asserting subject matter jurisdiction has the burden of proving its existence, i.e. that immunity does not bar the suit.” (internal quotation marks omitted)). The district court properly dismissed Cole’s claims against the Department of Health and Human Services because those claims are barred by sovereign immunity. See Sierra Club v. Whitman, 268 F.3d 898 , 901 (9th Cir. 2001) (suits against any agency of the United States “are barred by sovereign immunity unless there has been a specific waiver of that immunity”). Dismissal of Cole’s claims against the Federal Trade Commission was proper on the same basis. Cole failed to include any argument in his opening brief regarding the 2 19-35894 district court’s dismissal of the United States Attorney’s Office, and thus has waived any challenge to that issue. See McKay v. Ingleson, 558 F.3d 888 , 891 n.5 (9th Cir. 2009) (arguments not raised in an appellant’s opening brief are waived). We do not consider arguments raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983 , 985 n.2 (9th Cir. 2009). AFFIRMED. 3 19-35894

2021-01-26 21:00:45.820178+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2021/01/26/18-72211.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SERGIO JONATHAN MORENO, No. 18-72211 Petitioner, Agency No. A096-839-092 v. MEMORANDUM* ROBERT M. WILKINSON, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 20, 2021** Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges. Sergio Jonathan Moreno, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for deferral of removal under the Convention Against Torture (“CAT”). We have jurisdiction under 8 * 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). U.S.C. § 1252. We review for substantial evidence the agency’s factual findings. Garcia-Milian v. Holder, 755 F.3d 1026 , 1031 (9th Cir. 2014). We deny the petition for review. Substantial evidence supports the agency’s denial of CAT relief because Moreno failed to show it is more likely than not he would be tortured by or with the consent or acquiescence of the government if returned to Mexico. See Wakkary v. Holder, 558 F.3d 1049 , 1067-68 (9th Cir. 2009) (no likelihood of torture). We reject Moreno’s contention that the BIA erred in its legal analysis or ignored evidence. See Najmabadi v. Holder, 597 F.3d 983 , 990 (9th Cir. 2010) (the agency adequately considered evidence and sufficiently announced its decision). We do not consider the materials Moreno references in his opening brief that are not part of the administrative record. See Fisher v. INS, 79 F.3d 955 , 963 (9th Cir. 1996) (en banc) (court’s review is limited to “the administrative record upon which the [removal] order is based” (internal quotation marks and citation omitted)). On July 31, 2019, the court granted a stay of removal. The stay of removal remains in place until issuance of the mandate. PETITION FOR REVIEW DENIED. 2 18-72211

2021-03-18 22:13:14.438308+00

https://www.tncourts.gov/sites/default/files/inreestateofgladysaleneclifton.opn_.pdf

03/18/2021 IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE December 3, 2020 Session IN RE ESTATE OF GLADYS ALENE CLIFTON Appeal from the Rutherford County Probate Court No. 0000 Tolbert Gilley, Judge ___________________________________ No. M2020-00432-COA-R3-CV ___________________________________ This appeal concerns the interpretation of a will. The will divided the testator’s residual estate into as many shares as the testator had children with the further instruction that the share of a deceased child would be divided among that child’s “issue then living.” The will stated, in pertinent part, that “‘issue’ . . . includes a person who has a parent-child relationship . . . with the person through whom this person claims benefits.” When she died, the testator had two surviving children and one deceased daughter. The deceased daughter was predeceased by one of her two sons, and the deceased son was survived by two children—the testator’s great-grandchildren. The petition to admit the will named the two surviving children and the deceased daughter’s living son as the beneficiaries of the estate but excluded the testator’s great-grandchildren, whose father had predeceased the testator. When the testator’s great-grandchildren filed a motion to be included with their uncle as “issue” of the deceased daughter, the estate opposed the motion, arguing that the great- grandchildren were not “issue” of testator’s deceased daughter because the petitioners did not have a “parent-child relationship” with the daughter, who was the petitioners’ grandmother. The trial court agreed and held that the only issue of the deceased daughter who could inherit was her living son—the great-grandchildren’s uncle. We respectfully disagree. The will’s plain language “includes” persons with a “parent-child relationship” to “the person through whom [the] person claims benefits,” but does not exclude those who do not. Accordingly, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Reversed and Remanded FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D. BENNETT and W. NEAL MCBRAYER, JJ., joined. Steven Chase Fann, Murfreesboro, Tennessee, for the appellants, Stevie Ray Smith and Kalie Brooke Smith. Patrick Johnson, Nashville, Tennessee, for the appellee, Estate of Gladys Alene Clifton. OPINION In July 2014, Gladys Alene Clifton (“Mrs. Clifton”) executed a will that directed her residual estate be divided into equal shares: I divide all of the residue and remainder of my gross estate, real and personal, wherever situated, into as many equal shares as there are living children of mine and deceased children of mine with issue then living. Each living child shall be given one share. Any share of my estate allocated to a deceased child with issue then living shall be further divided into shares for said issue, per stirpes. The terms “issue,” “child,” “children,” includes a person who has a parent-child relationship, as defined under applicable state law, with the person through whom this person claims benefits under my Will. When she died in 2017, Mrs. Clifton had two living children, Penelope Clifton and Gene Clifton, and one deceased child, Sherry Smith. Sherry had one living son, Randy Smith, and one deceased son, Danny Smith. Danny was survived by two children, Stevie Ray Smith and Kalie Brooke. In February 2018, Penelope Clifton filed a petition to admit Mrs. Clifton’s will in the Rutherford County Probate Court. The petition listed three beneficiaries: Gene Clifton, Penelope Clifton, and Randy Smith. The court admitted the will and appointed Penelope Clifton as the personal representative of Mrs. Clifton’s estate (“the Estate”). Over the next two years, the Estate requested and received approval to sell 18 acres of Mrs. Clifton’s real property. In January 2020, two of Mrs. Clifton’s great-grandchildren, Stevie Ray Smith and Kalie Brooke (“Petitioners”), filed a petition to enjoin the Estate from further action pending an interpretation of the will. Petitioners asserted that Sherry Smith’s share of Mrs. Clifton’s estate should have been divided between them and their uncle, Randy, because Petitioners were “issue then living” of “a deceased child.” The Estate opposed the petition, contending that the will defined “issue” as only persons with “a parent-child relationship” to any deceased child. Under this definition, Randy was the only “issue then living” of Mrs. Clifton’s deceased daughter, Sherry. After a hearing in February 2020, the court agreed with the Estate and held that Petitioners were not issue and, therefore, not beneficiaries of Mrs. Clifton’s residual estate: While the Petitioners claim that they are the “issue” of Sherry Smith, the definition of “issue” . . . is one where there is a “parent-child relationship.” There is no “parent-child” relationship between the Petitioners and the Testator. There is no “parent-child” relationship between the Petitioners and -2-  Sherry P. Smith. The intent of the Testator is clear in that only: (1) living issue of the Testator, i.e. Penelope June Clifton and Gene Dale Clifton; or (2) issue of the deceased Sherry P. Smith, i.e. Danny Smith and/or Randy Smith, could possibly inherit through her. The Petitioners are neither of these. Accordingly, the court denied the petition. This appeal followed. ANALYSIS Petitioners raised three issues in this appeal. We, however, have determined that the dispositive issue is whether the residuary clause in Mrs. Clifton’s will limited or restricted the meaning of the term “issue” to persons with a parent-child relationship to Mrs. Clifton or one of her children. The construction of a will is a question of law that we review de novo with no presumption of correctness. See In re Estate of Vincent, 98 S.W.3d 146 , 148 (Tenn. 2003). “It is the absolute right of the testator to direct the disposition of [the testator’s] property and [courts] are limited to the ascertainment and enforcement of [the testator’s] directions.” Daugherty v. Daugherty, 784 S.W.2d 650 , 653 (Tenn. 1990). Thus, “[t]he basic rule in construing a will is that the court shall seek to discover the intention of the testator, and will give effect to it unless it contravenes some rule of law or public policy.” Id. When doing so, it is our duty to give words their “common and accepted meaning, unless it clearly appears another intention expressed by the testator is controlling.” Am. Tr. & Banking Co. v. Hedges, 64 S.W.2d 527 , 530 (Tenn. Ct. App. 1933). Accordingly, absent evidence to the contrary, “technical words . . . must be given technical meanings.” Daugherty, 784 S.W.2d at 653 (citing Third Nat. Bank in Nashville v. Stevens, 755 S.W.2d 459 , 462 (Tenn. Ct. App. 1988)). In her will, Mrs. Clifton identified Sherry Smith, Gene Clifton, and Penelope Clifton as her “children”: At the time of executing this Will, I am unmarried. The names of my children are listed below. Unless otherwise specifically indicated in this Will, any provision for my children includes the below-named children, as well as any child of mine hereafter born or adopted. Sherry Prosnick Smith Gene Dale Clifton, Jr. Penelope June Clifton Mrs. Clifton made one specific bequest to Penelope Clifton, which is not in dispute, and left the residue and remainder to her “children” and their “issue” as follows: -3-  I divide all of the residue and remainder of my gross estate, . . . into as many equal shares as there are living children of mine and deceased children of mine with issue then living. Each living child shall be given one share. Any share of my estate allocated to a deceased child with issue then living shall be further divided into shares for said issue, per stirpes. The terms “issue,” “child,” “children,” includes a person who has a parent-child relationship, as defined under applicable state law, with the person through whom this person claims benefits under my Will. As Petitioners correctly point out, Tennessee law defines a person’s “issue” as “the person’s lineal descendants, adopted as well as natural born, of all generations, with the relationship of a parent and child at each generation being determined by the definitions of child and parent contained in this title.” Tenn. Code Ann. § 31-1-101 (6).1 Accordingly, we have recognized that “[t]he word ‘issue’ includes all persons who have descended from a common ancestor, and unless the context indicates otherwise means lineal descendants without regard to degree of proximity or remoteness.” Decker v. Meriwether, 708 S.W.2d 390 , 393 (Tenn. Ct. App. 1985) (citing Burdick v. Gilpin, 325 S.W.2d 547 , 554 (Tenn. 1959)). The Estate contends that the general definition of “issue” does not apply because the will expressly states that “‘issue’ . . . includes a person who has a parent-child relationship with [the deceased child of Testator].” We respectfully disagree that the use of the non-limiting term “includes” limits or restricts Mrs. Clifton’s beneficiaries to only those with a parent-child relationship to Mrs. Clifton’s children. To the contrary, as we have previously held, when the word “includes” or “including” is used, “it serves as a term of enlargement, not one of restriction.” Lovlace v. Copley, 418 S.W.3d 1 , 18 (Tenn. 2013); see Sears, Roebuck & Co. v. Roberts, No. M2014-02567-COA-R3-CV, 2016 WL 2866141 , at *6 (Tenn. Ct. App. May 11, 2016) (recognizing that “use of the term ‘include’ does ‘not ordinarily introduce an exhaustive list’” (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 132 (2012))). Thus, by stating that “‘issue’ . . . includes a person who has a parent-child relationship with [Testator’s children],” the will does not exclude those who do not. 1 “[U]nless a contrary intention appears in its terms, a will is construed and takes effect as if executed immediately prior to the death of the testator.” Calhoun v. Campbell, 763 S.W.2d 744 , 748 (Tenn. 1988) (citing Tenn. Code Ann. § 32-3-101 ). -4-  Based on the foregoing, we respectfully reverse the trial court’s determination that Petitioners are not beneficiaries of Mrs. Clifton’s estate.2 IN CONCLUSION The judgment of the trial court is reversed, and this matter is remanded for further proceedings consistent with this opinion. Costs of appeal are assessed against the Estate of Gladys Alene Clifton. ________________________________ FRANK G. CLEMENT JR., P.J., M.S. 2 Because we resolve this matter on the plain language of the will, we need not address the two additional issues raised by Petitioners: (1) “Whether the probate court erred in failing to invoke the anti- lapse statute to find that Petitioners actually satisfy the parent-child relationship status allegedly required by the will” and (2) “[w]hether the probate court erred by not adhering to the traditional rule of lapsed residuary devises that would pass the lapsed benefits to the Petitioners’ lineal ancestors outside of the will and through intestacy allowing them to take as beneficiaries.” -5-

2020-12-02 18:00:39.681419+00

http://www.ca10.uscourts.gov/opinions/20/20-6050.pdf

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT December 2, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA, Plaintiff – Appellee, v. No. 20-6050 (D.C. No. 5:07-CR-00023-R-1) JEREMY VAUGHN PINSON, (W.D. Okla.) Defendant – Appellant. ___________________________________ UNITED STATES OF AMERICA, Plaintiff – Appellee, v. No. 20-6051 (D.C. No. 5:06-CR-00114-R-1) JEREMY VAUGHN PINSON, (W.D. Okla.) Defendant – Appellant. _________________________________ ORDER AND JUDGMENT* _________________________________ Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges. _________________________________ * 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.  In this consolidated appeal, Appellant Jeremy Pinson,1 proceeding pro se, asks us to reverse the district court’s denial of two identical motions to reduce her sentence under 18 U.S.C. § 3582 (c)(1).2 Exercising jurisdiction under 28 U.S.C. § 1291 , we affirm. BACKGROUND I. Factual Background In 2004, Pinson, just eighteen years old, pleaded guilty to embezzling almost $32,000 from a congressional campaign for which she worked. A year into serving her sentence in the Oklahoma Department of Corrections, Pinson sent a letter threatening then-President George W. Bush’s life. After Pinson’s resulting indictment in the Western District of Oklahoma, a jury convicted her of threatening the President of the United States. While in prison awaiting sentencing, Pinson committed two other federal crimes. In December 2006, she falsely alleged to a Deputy United States Marshal that a fellow inmate planned to stab a United States District Judge. Just a few months later, Pinson sent a letter to a different United States District Judge threatening to harm one of the jurors who had sat on the jury that convicted her of threatening President Bush. After a federal grand jury indicted her of one count of making a false 1 Although born biologically male, Pinson is a transgender woman. We therefore refer to her using her preferred pronouns. 2 Because Pinson appears pro se, we liberally construe her pleadings but won’t act as her advocate. See Hall v. Bellmon, 935 F.2d 1106 , 1110 (10th Cir. 1991). 2 statement (violating 18 U.S.C. § 1001 (a)(2)) and one count of threatening a juror (violating 18 U.S.C. § 876 (c)), Pinson pleaded guilty to both counts. The district court held a consolidated sentencing hearing for Pinson’s three offenses—the jury conviction for threatening President Bush and the guilty pleas for making a false statement and threatening a juror. United States v. Pinson, 542 F.3d 822 , 827 (10th Cir. 2008). The district court sentenced Pinson to the statutory maximum on all three counts. Id. at 829 . Pinson challenged her jury conviction and her sentences, but we upheld both. Id. II. Procedural Background On November 27, 2019, Pinson emailed the prison warden to request compassionate release. R. vol. 1 at 64 (“Pursuant to the ‘extraordinary and compelling circumstances’ provision of the First Step Act I seek compassionate release consideration due to mental health diagnoses and conditions.”). Though Pinson maintains that she never received a response, the warden denied her request on December 10, 2019. On December 27, 2019, Pinson deposited in the prison mail system her Motion to Reduce Sentence Pursuant to 18 U.S.C. 3582 (the “Motion”), which the district court received and filed on January 21, 2020.3 Pinson asserted numerous reasons to support compassionate release, including the “unusually large” upward variance to her sentence that she says the Tenth Circuit only “reluctantly upheld”; BOP’s placing 3 Pinson filed two identical motions, one for each of her criminal cases in the Western District of Oklahoma. 3 her in “the most dangerous prison facility then in operation”; her transgender status, which subjected her to serious violence by other inmates, including rape; her numerous suicide attempts; her sole surviving relative, her mother, being 61 years old and in “failing health”; and her successful rehabilitation. Id. at 57, 61–63. On February 25, 2020, the Government responded, arguing that, because Pinson hadn’t appealed the warden’s denial of her request for compassionate release, she had failed to fully exhaust her administrative remedies. Alternatively, the Government argued Pinson’s Motion failed on the merits. On February 27, 2020, without awaiting a reply from Pinson, the district court dismissed her Motion. The district court concluded that by Pinson’s failing to appeal the warden’s denial, Pinson had “failed to establish that she exhausted her administrative remedies, a condition precedent to consideration of her request for compassionate release.” Id. at 99. Further, the district court concluded that even had Pinson exhausted her administrative remedies, her “reduction of her sentence [was] not justified” under the First Step Act. Id. at 101. Specifically, the district court noted that the First Step Act precluded it from granting Pinson’s Motion unless it found that she is no longer a danger to the community, which the court ruled would be “nearly impossible.” Id. at 102. After receiving Pinson’s one-page Reply,4 the district court issued a second order dismissing her Motion for the same reasons stated in its earlier order. 4 Due to a prison mail issue, Pinson didn’t receive the district court’s original order denying her Motion until after she had already mailed her Reply. 4  DISCUSSION Pinson challenges the district court’s order dismissing her Motion on two grounds: (1) that the district court erred by concluding that she had failed to exhaust her administrative remedies; and (2) that the district court based its alternative merits ruling on “distorted” claims. Appellant’s Opening Br. at 3. Because the district court denied Pinson’s Motion on the merits, we needn’t consider whether she failed to exhaust her administrative remedies. Rather, like the district court, we will assume for purposes of this appeal that she adequately exhausted those remedies. Our inquiry thus focuses on the district court’s merits determination that, after considering the First Step Act and the § 3553(a) sentencing factors, Pinson remains a danger to the community. I. Standard of Review We have yet to decide in a First Step Act case what standard of review applies when considering a challenge to a district court’s denial of a § 3582(c)(1) motion based on dangerousness and the § 3553(a) factors. We will review for an abuse of discretion. We have reviewed similar challenges under § 3582(c)(1) for an abuse of discretion. See United States v. Saldana, 807 F. App’x 816, 818 n.4 (10th Cir. 2020) (citing United States v. Piper, 839 F.3d 1261 , 1265 (10th Cir. 2016)) (“We review for abuse of discretion the district court’s decision to deny an authorized sentence reduction [under § 3582(c)(1)].”). And we have long reviewed for an abuse of discretion challenges to sentence length under § 3582(c)(2). See, e.g., Piper, 839 F.3d at 1265 (quoting United States v. Osborn, 679 F.3d 1193 , 1195 (10th Cir. 2012)) 5 (“We review for an abuse of discretion a district court’s decision to deny a reduction of sentence under 18 U.S.C. § 3582 (c)(2).”). Further, other circuits have recently concluded that these kinds of challenges under the First Step Act should be reviewed under this deferential standard. See, e.g., United States v. Chambliss, 948 F.3d 691 , 693 (5th Cir. 2020) (quotation marks and citations omitted) (giving “deference to the district court’s decision and not[ing] that reversal is not justified where the appellate court might reasonably have concluded that a different sentence was appropriate” because “compassionate release is discretionary, not mandatory, and [can] be refused after weighing the sentencing factors of 18 U.S.C. § 3553 (a).”); United States v. Kincaid, 805 F. App’x 394, 395 (6th Cir. 2020) (brackets, quotation marks and citation omitted) (“[D]istrict courts have broad discretion to determine what sentence will serve § 3553(a)’s statutory objectives.”); United States v. Pawlowski, 967 F.3d 327 , 330 (3d Cir. 2020) (brackets in original) (quotation marks and citation omitted) (“[T]he compassionate-release provision . . . states that, under appropriate circumstances, the court may [not shall] reduce the term of imprisonment. Accordingly, we hold that the abuse-of-discretion standard applies.”); United States v. Rodd, 966 F.3d 740 , 747–48 (8th Cir. 2020) (brackets, quotation marks, and citations omitted) (“[W]e need only determine whether the district court abused its discretion in determining that the § 3553(a) factors weigh against granting [Movant’s] immediate release. . . . Although [Movant] may disagree with how the district court balances the § 3553(a) factors in 6 adjudicating his compassionate-release motion, that is not a sufficient ground for reversal.”). Adopting the abuse-of-discretion standard, we will uphold the district court’s ruling unless it “relie[d] on an incorrect conclusion of law or a clearly erroneous finding of fact.” Piper, 839 F.3d at 1265 (quoting United States v. Battle, 706 F.3d 1313 , 1317 (10th Cir. 2013)). II. The District Court Didn’t Abuse Its Discretion In Denying Pinson’s Motions The First Step Act permits a court to reduce a prisoner’s sentence if, “after considering the factors set forth in section 3553(a) to the extent that they are applicable,” the court determines that “extraordinary and compelling reasons warrant such a reduction” and “that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582 (c)(1)(A)(i). The Sentencing Commission policy statement identifies four categories of extraordinary and compelling reasons: “(A) Medical Condition of the Defendant,” “(B) Age of the Defendant,” “(C) Family Circumstances,” and “(D) Other Reasons.” U.S.S.G. § 1B1.13, cmt. n.1. But even when one of those extraordinary and compelling reasons applies, a court may not reduce a prisoner’s sentence unless it determines that “[t]he 7 defendant is not a danger to the safety of any other person or to the community.” Id. § 1B1.13(2).5 Though Pinson failed to classify her Motions under a particular category, it appears she sought relief based on her “Family Circumstances” and “Other Reasons.” See R. vol. 1 at 61–63 (noting, among other things, her mother’s age and failing health as well as her particular vulnerability in prison as a transgender woman). But the district court never considered Pinson’s proffered extraordinary and compelling reasons, apparently because it determined that, regardless, the court “would find it nearly impossible to conclude that Ms. Pinson is not a danger to the safety of other people or the community.” R. vol. 1 at 102. In support of its conclusion, the district court cited Pinson’s “initial crimes” of threatening President Bush and a juror, which “indicat[ed] [a] propensity for violence”; an additional conviction for mailing a letter that threatened a Secret Service agent; and her disciplinary infractions while incarcerated, “including fourteen severe infractions and her most recent infraction— disruptive conduct–high—[which] occurred less than one year ago.” Id. 5 We recognize that some courts have concluded that passage of the First Step Act has reduced—or even eliminated—the relevance of the Sentencing Commission’s policy statement. See, e.g., United States v. Fox, 2019 WL 3046086 , at *2–3 (D. Me. July 11, 2019) (collecting cases) (“I agree with the courts that have said that the Commission’s existing policy statement provides helpful guidance on the factors that support compassionate release, although it is not ultimately conclusive given the statutory change.”). But while Pinson argued in the district court that the policy statement no longer binds federal courts, we have continued to refer to it in deciding challenges related to § 3582(c)(1). See Saldana, 807 F. App’x at 819 (relying on the policy statement to resolve petitioner’s appeal). 8  On appeal, Pinson challenges the district court’s conclusion that she remains dangerous to the community. Specifically, Pinson argues that she was acquitted of her most recent disciplinary infraction; most of her disciplinary infractions “were repeated charges of self-harm such as suicide attempts”; and her crimes from nearly fifteen years ago no longer bear on her dangerousness to society. Appellant’s Opening Br. at 3. Having reviewed the district court’s orders, the parties’ briefing, and the applicable law, we conclude that the district court acted within its discretion in denying Pinson’s Motions. Much of Pinson’s challenge criticizes the district court’s factual findings and conclusions, but Pinson falls far short of showing that the district court relied on clearly erroneous facts. To the contrary, the district court reasonably concluded that Pinson’s history of violence and threats prevented it from finding that she is no longer a danger to others in the community. Accordingly, we won’t disturb the district court’s ruling.6 6 To the extent Pinson challenges the district court’s refusal to hold an evidentiary hearing concerning her dangerousness, we conclude the district court acted within its discretion by denying that request. See R. vol. 1 at 103 (requesting “a televideo evidentiary hearing”); Appellant’s Opening Br. at 3 (“Further the district court did not allow [Pinson] an opportunity to factually rebut, with evidence, that the Goverments [sic] assertions were false or distorted or to present expert witnesses on the issue of her current dangerousness (i.e., a psychiatrist).”). An evidentiary hearing may be appropriate “when any factor important to the sentencing determination is reasonably in dispute.” Piper, 839 F.3d at 1270 (emphasis added) (quoting U.S.S.G. § 6A1.3(a)). Because we conclude Pinson’s dangerousness wasn’t reasonably in dispute, the district court wasn’t required to hold an evidentiary hearing. 9  CONCLUSION For the foregoing reasons, we AFFIRM the district court’s denial of Pinson’s Motions and DISMISS this matter. Entered for the Court Gregory A. Phillips Circuit Judge 10

2020-01-17 22:01:48.789828+00

Murdock

*1161OPINION. MuRdock: The respondent defends as to the first issue, only on the broad ground that picnic expenses can not be considered ordinary *1162and necessary expenses. We think that it has been sufficiently demonstrated in this case that they were ordinary and necessary expenses of carrying on the department store business of the partnership. Poinsett Mills, 1 B. T. A. 6; Holt Granite Mills Co., 1 B. T. A. 1246; Anniston City Land Co., 2 B. T. A. 526; Elm City Cotton Mills, 5 B. T. A. 309; Hibbard, Spencer, Bartlett & Co., 5 B. T. A. 464; Popular Dry Goods Co., 6 B. T. A. 78; Superior Pocahontas Coal Co., 7 B. T. A. 380; McGoy-Brandt Machinery Co., 8 B. T. A. 909. The partnership net income should be redetermined by allowing this deduction and the distributive shares of thfe petitioners redetermined accordingly. The petitioner J. W. Bowman claims the right to deduct the amounts which he contributed to the trust which he established in his name. For the year 1920 he claims this right under section 214 (a) (11) of the Revenue Act of 1918, which is in part as follows: (a) That in computing net income there shall be allowed as deductions: # # * * ⅝ * * (11) Contributions or gifts made within the taxable year to corporations organized and operated exclusively for religious, charitable, scientific, or educational purposes, or for 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 ⅛ * *. For the years 1921 and 1922 he claims this right under section 214 (a) (11) of the Revenue Act of 1921, which is in part as follows : (a) That in computing net income there shall be allowed as deductions: ******* (11) Contributions or gifts made within the taxable year to or for the use of: * * * (B) any corporation, or community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, literary or educational purposes, including posts of the American Legion or the women’s auxiliary units thereof, or for 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; * * *. This is the first case of its kind which has ever come to our attention. We know of no decided case involving an alleged contribution to a trust for the use of charitable and the other organizations as a class. In Mortimer G. Adler, 5 B. T. A., 1063, we decided that the petitioner therein was not entitled to deduct premiums paid on a policy of life insurance on his own life where he had named as beneficiary certain religious and charitable corporations but had retained the right to change the beneficiary. The present case, however, is distinguishable from the Adler case, for here the petitioner did not reserve the right to change the beneficiary. The wording of the part of the 1918 Act above set forth differs materially from that of the Revenue Act of 1921. In the former *1163Act Congress has limited the deduction to contributions or gifts made to corporations, as defined in the statute, while in the latter Act it has used the words “ or for the use of ” and also the words “ or community chest, fund, or foundation.” It is obvious that these additional words used in the later Act allow the deduction of contributions which were formerly not allowed. The gifts here in question were not made to a corporation organized and operated exclusively for religious, charitable, scientific or educational purposes or for the prevention of cruelty to animals. They were not made to a corporation at all but on the contrary were made to a trustee, and they might go to a community chest. It follows, therefore, that the petitioner is not entitled to deduct any part of the $4,500 which he contributed to the trust in 1920. Ellen Nevins, Executrix, 1 B. T. A. 1162. The situation under the Revenue Act of 1921 is different. It is true that in almost every case that has come before this Board involving contributions, the contributions in question have been made to some specifically named recipient. However, we find nothing in the Revenue Act of 1921 requiring the naming of any particular recipient, but on the contrary the language employed by Congress in this Act in our opinion permits the deduction of contributions made for the use of any one or all of a class consisting for example of the churches, the hospitals, or the children’s homes situated in any part of the United States, no part of the net earnings of which inures to the benefit of any private stockholder or individual. If the petitioner in this case had established a trust similar to the one which he did establish and had provided therein that the trustee should distribute the income and/or the corpus of the trust to any one or more of the churches in Harrisburg organized and operated exclusively for religious purposes, no part of the net earnings of which inured to the benefit of any private stockholder or individual and during each of the taxable years had contributed $5,000 to this trust, this amount would be a contribution within the meaning of the Revenue Act. Furthermore, if he sees fit to extend the class which may benefit by his gift and, in extending the class, uses the very words of the Revenue Acts to include corporations or associations organized and operated exclusively for religious, charitable, scientific and educational purposes, no part of the net earnings of which inures to the benefit of any private stockholder or individual, we see no reason why he should be any the less entitled to deduct from his income the amount which he contributed in any year. Cf. Ould v. Washington Hospital, 95 U. S. 303; Lederer v. Stockton, 260 U. S. 3. Paragraph 9 of the deed of trust provides that the fund may be turned over to the Harrisburg Foundation for administration, but only for the purposes thereto*1164fore set forth in the deed of trust. This foundation is a community chest. In this provision of the trust instrument there would be no bar to the right of the petitioner to deduct the amount contributed, subject to the 15 per cent limitation. The petitioner definitely parted with the money which he gave to the trust and thereafter he had no equitable nor legal claim to the amount. The beneficiaries under the trust are, of course, somewhat uncertain, but they are limited to a class. It is also true that during the taxable years no one in the class received any benefit from the amounts contributed by the petitioner to the trust. However, no one outside the class can ever benefit by the contribution and machinery was set in motion whereby in all likelihood some member of the class would benefit. In our opinion this was the sort of thing that Congress intended to encourage, and under the 1921 Act, or for the years 1921 and 1922, the petitioner is entitled to deduct as contributions, subject to the 15 per cent limitation, the amounts which he gave to the trust, namely, $3,500 and $2,000. Reviewed by the Board. Judgment will be entered under Rule SO.

2020-01-17 22:01:48.824092+00

Trammell

*1167OPINION. Trammell : The petitioner in its pleadings called in question the correctness of the net income for the taxable years as computed by the respondent, and alleged that the respondent erred in the calculation of rentals received and in determining the amount of profit derived from the sale of real estate. These issues were settled by virtue of a stipulation of the parties, filed at the hearing, wherein was set forth the amount of the correct net income for each taxable year. The amounts so stipulated we have adopted and set out in our findings of fact above, and the redetermination of the deficiencies, if any, should be based thereon. The only issue remaining for consideration here is one of law, namely, whether the amount of the net income, so stipulated for each of the years involved, is taxable to the trust estate, or whether it is taxable to the beneficiaries as distributable income. *1168The Revenue Act of 1818 provides: Seo. 219. (a) That the tax imposed hy sections 210 and 211 shall apply to the income of estates or of any kind of property held in trust, including— ******* (3) Income held for future distribution under the terms of the will or trust; and (4) Income which is to be distributed to the beneficiaries periodically, whether or not at regular intervals, * * * ******* (c) In cases under paragraph * * * (3) of subdivision (a) the tax shall be imposed upon the net income of the estate or trust and shall be paid by the fiduciary, * * * (d) In cases under paragraph (4) of subdivision (a) * * * the tax shall not be paid by the fiduciary, but there shall be included in computing the net income of each beneficiary his distributive share, whether distributed or not, of the net income of the estate or trust for the taxable year * * *. The Revenue Act of 1921 contains substantially similar provisions in so far as material here. It is apparent, therefore, that in order to decide the issue presented, we must first determine whether or not the income in question was properly distributable to the beneficiaries. If the income was properly distributable, whether or not it was actually distributed, it is taxable to the beneficiaries under section 219 (d), supra. If the income was not properly distributable, the tax must be paid by the fiduciaries. William E. Scripps, 1 B. T. A. 491; Mary L. Barton, 5 B. T. A. 1008; Elizabeth S. Sprague, 8 B. T. A. 173. See also Willcuts v. Ordway, 19 Fed. (2d) 917. The will which created the trust estate contains no provision respecting the disposition of the income in controversy. A codicil to the will directs that the income from the “ Mayer Block ” should be distributed, and the respondent has conceded that said income is taxable to the beneficiaries. However, there is no instruction otherwise regarding the disposition of income. The decedent neither directed that the income be distributed nor that it be accumulated. Accordingly, we must look to the law of Pennsylvania to determine this question. The Pennsylvania statute — Act of April 18, 1853, ¶ 9 (P. L. 503) — ■ provides as follows: No person or persons shall, after the passing of this act, by any deed, will or otherwise, settle or dispose of any real or personal property, so and in such manner that the rents, issues, interest or profits thereof, shall be wholly or partially accumulated for any longer term than the life or lives of any such grantor or grantors, settler or settlers, or testator, and the term of twenty-one years from the death of any such grantor, settler or testator, that is to say, only after such decease during the minority or respective minorities, with allowance for the period of gestation of any person or persons, who under the uses or *1169trusts of the deed, will, or other assurances directing such accumulation, would, for the time being, if of full age, be entitled unto the rents, issues, interests, and profits so directed to accumulate, and in every case where any accumulation shall be directed otherwise than as aforesaid, such direction shall be null and void in so far as it shall exceed the limits of this act, and the rents, issues, interests and profits, so directed to be accumulated contrary to the provisions of this act, shall go to and be received by such person or persons as would have been entitled thereto if such accumulation had not been directed, * * *. The Supreme Court of Pennsylvania has held in numerous cases that, under the statute above quoted, if a will creating a trust provides for the accumulation of income beyond the period specified, or if under the provisions of the will the income might possibly be accumulated beyond said period, such provision is null and void in toto, and the income is distributable to those who would be entitled to receive it if there had been no such provision in the will. See McKee's Appeal, 96 Pa. 277; Schwartz's Appeal, 119 Pa. 337; 13 Atl. 212; Sharp’s Estate, 155 Pa. 289; 26 Atl. 441; Edwards’ Estate, 190 Pa. 177; 42 Atl. 469; and cases cited. It further appears that, under decisions of the Pennsylvania courts, if the will contains no specific provision relating to the disposition of the income, it must be regarded as forming a part of the corpus of the estate and distributable in the same manner. In other words, in the absence of specific directions in the will, the income accumulates as part of the corpus, unless such accumulation violates the act of April 18,1853, supra, in which latter event the income is distributable to the beneficiaries. In the instant case, the will provides that the trust estate may continue during the lives of any three of the trustees, who are also the principal beneficiaries. It is obvious, therefore, that the life of .the trust is indefinite and may continue beyond the period of 21 years from the death of the testator, with allowance for the period of gestation, as provided in the statute. Hence, under the rule of the Pennsylvania courts above referred to, any accumulation of the income in excess of the necessities of the trust itself would be unlawful, and the income would be regarded as distributable to the beneficiaries to the same extent as if an affirmative provision to that effect were contained in the will. In McKee’s Appeal, supra, the decedent in his will made no provision for disposition of the income. He devised his house to his widow for life, together with an annuity of $2,000, and directed that upon her death the residue of his estate should be divided equally among his children. In considering the status of the income of the estate, the Supreme Court of Pennsylvania, in its opinion, said: Frederick McKee died on tbe 21st of M.arcb 1865, leaving to survive him a widow and two children, one of whom is the petitioner. By his will he devised *1170Ms mansion house to his wife for life, and also bequeathed to her, for a like period, an annuity of $2000. He then made the following direction: “And upon her decease I will and bequeath said house, as also' all the rest of my worldly estate, to my children, in equal shares, and in default of children or lineal heirs of my body, at the time of her decease, I will and bequeath all my worldly estate to my brothers and sisters in equal shares.” In this we have a precedent estate so limited as to determine on an event wMch must certainly happen, that is, the death of the widow, and the remainder so limited to ascertained persons in esse, Frederick and Melissa McKee, that the preceding estate may determine before the estate limited in remainder. It follows that this is a vested remainder — an estate vested in pramenti, but enjoyable in futuro; that is, upon the mother’s death. The corpus of the estate is thus easily disposed of, for of that the testator determined that it should not go to his children until the death of his widow. But since his death there have been large accumulations, arising from rents, issues and profits; accumulations which exceed the original estate, and the necessities of the trust, and the serious question is, what disposition shall be made of them? Were we allowed to dispose of the matter, as we may suppose the testator would have disposed of it, had he known the facts as they now exist, we would say, without hesitation, these accumulations shall go to his children, for so he would have directed. But as it is obvious that he did not anticipate an increase so large to his estate after Ms decease, so it is just as obvious that he entertained no intention concerning it. Hence, of such intention we can predicate nothing. On the other hand, were it not for the eighth section of the Act of 18th April 1853, the question would not be difficult of solution; for, before that act, accumulations as necessarily and naturally formed part of the original estate as vegetable accretions form part of the growing plant. In such case, as the children must wait for the possession of the corpus of the estate until the time fixed for the expiration of the precedent trust, so must they wait for the accretions which by natural growth form part of the corpus. But the Act of 1853 has altered this, and made such accumulations unlawful and void, unless, with relation to them, its terms and conditions are strictly followed. If, in the present case, we compare the provisions of the will with the terms of the act, we will find that not only were the latter not complied with, but the testator, as we have already said, not having any such accumulations in view, never intended to comply with them. The extreme period allowed for accumulations by the act is twenty-one years, with the additional allowance of the ordinary time for gestation. Here the time is indefinite, it may be much more than twenty-one.years, for it depends upon the life of Mrs. McKee. In Sharf’s Estate, supra, the decree of the orphans’ court was affirmed by the Supreme Court of Pennsylvania in a per curiam decision, and the appeal dismissed. In the opinion of the orphans’ court, thus approved by the Supreme Court, it was said: * The accumulation of one-half of the income, as provided in the first codicil, is void, and Eollin takes the same for life, as provided in the original will. The accumulation, as provided in said codicil, is to continue during Rollin’s life and the life of any widow he may leave, and so this provision is void in toto. Washington's Estate, 75 Pa. St. 102; McKee’s Appeal, 96 Pa. St. 277; Carson’s Appeal, 99 Pa. St. 325; Brooks Estate, 140 Pa. St 84, 21 Atl. Rep. 210. *1171In Edwards' Estate, supra, tbe Supreme Court of Pennsylvania reviewed at some length its prior decisions on this question, and in the course of its opinion said: The first and principal contention of the trustee is that “ the trust for accumulations is valid during the minority of the children of George J. Edwards”; that “ it is not void in toto, but only pro tanto.” Brown v. Williamson’s Ex’rs., 36 Pa. St. 338, is cited as authority for this position. But it is not, in any essential particular, distinguishable from Ashurst v. Givens, 6 Watts & S. 323. It was not in any degree affected by the act of April 18, 1863, nor was it decided therein that the trust was transgressive. In Re Washington's Estate, 76 Pa. St. 102, it was held that, under the act of 1863, the direction for accumulation was void, because it was declared to be for the benefit of the testator’s estate, although it was provided by him that, after his daughter, Anna, reached full age, all the excess of income of his estate beyond the annuities to her and his mother and sister should be paid to his said daughter, “ for her sole and. separate etate, in addition to the annuity of fifteen hundred dollars she would then be entitled to receive”. His daughter, Anna, was his only child, and the accumulations therefore belonged to, and were paid to, her. In Schwartz’s Appeal, 119 Pa. St. 337, 13 Atl. 212, it was held that the direction to accumulate was void on the ground that' the time allowed for accumulation was indefinite, being for the lifetime or widowhood of the widow, and permitting a longer period than that allowed by the act of 1853. The learned judge of the orphans’ court said: “ The extreme time allowed for accumulations by the act of April 18, 1853 (P. E. 508), is 21 years, with the additional allowance for the ordinary period of gestation. In this case it is indefinite, depending on the one hand, upon the ‘ life or widowhood of the widow ’. It may be for a longer or shorter period than 21 years. The possibility of its being for a longer period renders the provisions in the will void and of no effect. McKee’s Appeal, 96 Pa. St. 377. So, also, on the other hand, these accumulations are for a period longer and other than during the minority of the children.” This court, on appeal, approved the conclusion of the court below, and held that the principle on which it was based was undoubtedly sound. Grim’s Appeal, 109 Pa. St. 391, 1 Atl. 212, was likened by this court to McKee’s Appeal, supra, in which the direction to accumulate was held to be illegal and void, and the accumulations passed under the intestate laws to the widow and next of kin, in equal moities. In view oí the decisions of the Pennsylvania courts all of the income involved in these proceedings must be regarded as distributable to the beneficiaries. Under the law of Pennsylvania it clearly could not legally be held for future distribution. The beneficiaries had the legal right to receive it. In fact, a portion of the income was actually distributed. The fact that there was no specific provision of law or a valid provision of the trust instrument for any particular periods at which distribution should be made, we think, is not important. In our opinion Congress clearly did not intend that income of a trust which could not be accumulated, but which was required to be distributed, should escape taxation entirely merely by the manner of its distribution. If the income did not come within any of the other subsections of section 219 and was to be distributed to bene*1172ficiaries, we think that it was taxable to the beneficiaries as income under subsection (a) (4) of section 219. Omitting the income coming within subsections (a) (1) and (a) (2) of section 219 as not applicable, income was either to be held for future distribution or was to be distributed. If it was not one it was the other. The provision “whether or not at regular intervals” clearly indicates that the times or periods of the distribution were not the determining factors. But here we have income which the trust had the right to receive. The trust had the right and duty imposed on it to incur and pay necessary and proper expenses in carrying on the business. With such duties to perform, clearly, accounting was necessary to determine the income before it could be distributed. At such periods as income was determinable, it was to be distributed. Income which is to be so distributed we think comes within subsection (a) (4) of section 219 and is taxable to the beneficiaries. Beviewed by the Board. Judgment will be entered for the petitioner.

2020-12-02 07:14:40.725605+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=16692&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa05%5cOpinion

Affirmed and Opinion Filed November 24, 2020 In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00636-CV EYM DINER L.P. D/B/A DENNY'S AND AIR CONDITIONING CONTROL SERVICE COMPANY, Appellants V. KHALED YOUSEF, Appellee On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-00546 MEMORANDUM OPINION Before Justices Partida-Kipness1 and Nowell Opinion by Justice Partida-Kipness This case arises from injuries appellee Khaled Yousef sustained performing work for his then-employer, Air Conditioning Control Service Company (ACCSC), at a Denny’s restaurant in Denton, Texas. A jury awarded Yousef $337,131.24 in damages. EYM Diner L.P. d/b/a Denny’s (EYM) and ACCSC appeal from the resulting adverse judgment. In multiple issues, EYM and ACCSC challenge the factual sufficiency of the evidence to support the jury’s findings that Yousef was not 1 The Honorable David Bridges, Justice, participated in the submission of this case. However, he did not participate in the issuance of this opinion due to his death on July 25, 2020.  negligent and EYM was negligent, allege various charge errors, complain of the denial of their motions for new trial, and contend cumulative error entitles them to a new trial. After reviewing the record, we affirm the trial court’s judgment. BACKGROUND Appellee Khaled Yousef grew up in Jordan. Prior to immigrating to the United States in 2008, he completed high school and received an electrical certification from a three-year institute in Jordan. ACCSC, an HVAC company in North Texas, hired Yousef in 2012 as a helper. Marwan Abdo owned ACCSC at that time. On May 25, 2017, Yousef was on a job for ACCSC at a Denny’s restaurant in Denton, Texas, when the cover to a breaker panel he was attempting to remove fell and severed part of his finger. EYM owned the restaurant and had hired ACCSC to repair the restaurant’s main air conditioning unit by replacing an air compressor and disconnect box. In the underlying proceeding, Yousef sued EYM and ACCSC for damages resulting from his injuries. The following provides context for an understanding of the issues presented on appeal. I. Yousef’s Employment at ACCSC When he first began working for ACCSC, Yousef assisted ACCSC technicians with their on-site repair and maintenance work. Yousef worked predominantly with Mulky Othman and Abdo. They taught Yousef how to do the job of an HVAC technician, starting with electric wiring and then repair, –2–  maintenance, and changing parts of air conditioning units. Yousef eventually became a technician for ACCSC. Yousef considered Othman his boss when they were on a jobsite together. However, when he was on a job with Othman, Yousef would take the lead as the electrical servicer, and Othman typically took the lead as the air conditioning servicer. According to Othman, Yousef was an electrical technician and Othman was the air conditioning technician, so who acted as team leader on a job depended on the work each was doing at the time. Abdo also testified that the majority of Yousef’s work was in electrical even though Yousef had also been trained on the refrigeration side of the business. II. The Denny’s Job EYM owns and operates several Denny’s restaurants in North Texas. In May 2017, EYM hired ACCSC to repair the main air conditioning unit at a Denny’s location in Denton, Texas. One of the restaurant’s two compressors needed to be replaced. The work was scheduled to take place on May 25, 2017. Abdo sent Yousef to the restaurant the day before to check the work site and confirm what work needed to be completed. Yousef found that the disconnect switch was also defective, so ACCSC suggested that EYM replace that too. EYM agreed and provided the new compressor and the new disconnect switch. ACCSC obtained a crane to move the new compressor to the roof for installation. –3–  Yousef, Othman, and Hussein Edduweh were the ACCSC employees on the job site at the restaurant on May 25, 2017. Yousef testified that he and Edduweh met at Abdo’s shop that morning before driving to Denton. Yousef coordinated with the crane operator and had the new compressor placed on the roof. After Othman arrived at the work site, he met with Yousef and Edduweh to discuss how to complete the job. The air conditioning unit and disconnect box were on the roof. To complete the work, they needed to turn off the power to the disconnect switch. Yousef went downstairs to the electrical room to look at the breaker box and locate the breaker connected to the disconnect switch. When he opened the door to the breaker box, he saw six breakers, none of which were labeled as to what equipment each breaker controlled. The door and breakers are shown here in Yousef’s trial exhibit 16-C. Abdo explained at trial that each breaker provides power to a subpanel, and each subpanel has several units attached, such as refrigeration or computers. One of the breakers provided power for the air conditioning unit they were working on the day of the accident. Because the breakers were not labeled, Yousef could not tell which breaker provided power to the disconnect switch they were replacing. Abdo testified that the prior owner of the Denton Denny’s restaurant, Continental Foods, warned him not to disconnect the –4– power to sensitive equipment like refrigeration and computers because that would disturb the restaurant’s work and customer service during business hours. Yousef understood that it was Abdo’s rule that ACCSC technicians were not permitted to turn the main breaker off at job sites. Yousef and Abdo testified that because the breakers were not labeled, the only way to determine which breaker controlled power to the disconnect switch without switching off one breaker at a time and risk turning off power to the restaurant was to use an amp meter. That, however, would require someone to remove the cover of the breaker box to expose the cables so that the amp meter could be placed on the cable to read the amps coming from the line. When Yousef saw the breaker box was not labeled, he called Othman to find out what to do. Othman went to the electrical room and called Abdo on the phone. Abdo and Othman discussed the panel and how to proceed. Yousef overheard Othman’s phone conversation with Abdo but did not participate in the call. According to Yousef, after the call ended, Othman “instructed me to open the box” because Abdo had instructed Othman to have Othman and Yousef open the breaker box. Yousef recalled that Othman related to him that Othman and Abdo decided that Othman and Yousef needed to open the breaker box and locate the correct breaker by putting a clamp meter on the wire and finding which breakers go to which units. Othman instructed Yousef to “Take the cover and I will go upstairs, and you – and you find the breaker and turn it off and I’ll go upstairs and I’ll be sure of that.” Yousef testified that the plan was for Othman to use the –5–  tester upstairs on the roof to test whether the breaker Yousef turned off downstairs was the correct one. Othman and Yousef would talk on the phone during the testing process. Othman testified that he and Yousef discussed needing to take the breaker panel cover off, and he agreed that they would not have needed to take the panel off if the breakers had been labeled. Abdo testified, however, that he told Othman to instruct Yousef not to do any other work with the breaker box until Abdo arrived at the restaurant. This testimony conflicted with Abdo’s testimony that he did not decide to drive to Denton until after Othman called Abdo and informed him that Yousef had been injured. Further, Othman testified that he did not remember if Abdo told him not to remove the panel cover until Abdo could get to the restaurant. III. The Accident After getting his tools from his van, Yousef set to work removing the breaker panel cover. As can be seen in the photos below, the panel cover was attached two to three feet from the ground and had eight visible screws attaching it to the inside of the breaker box. The panel cover weighed sixty-nine pounds. –6–  ACCSC Ex. 4 ACCSC Ex. 11 Breaker panel cover attached Inside of breaker panel cover to breaker box detached from breaker box Yousef testified that, using his left hand, he unscrewed the first screw to the left of the panel. Then, after unscrewing one or two additional screws, the panel cover fell, and his right hand landed underneath the panel. He told the jury he was not sure how his right hand ended underneath the panel because that hand was holding the box while he loosened the screws with his left hand. He testified that he did not have his right hand under the panel cover while he was loosening the screws. Yousef was wearing gloves, but the panel cover cut his gloves and his hand. The accident severed part of his finger. After the panel cover fell on him, Yousef went outside, found Othman, and told him to call an ambulance because his finger had been cut off. Yousef described the injury as “unbelievably painful.” –7–  Othman asked the Denny’s manager to call 911, and Edduweh looked for and found the severed portion of Yousef’s finger. He gave the finger to the first responders and went with Yousef in the ambulance to the hospital. Abdo arrived at the restaurant about two hours after the accident and went to the electrical room. He testified that his main goal was to close the breaker box. Abdo’s first attempt to put the panel cover back on the breaker box failed because the cover fell right down. He was ultimately able to reattach the cover to the breaker box. Abdo then went to the hospital and saw Yousef in the emergency room. Yousef’s doctor eventually cleared him to return work. He did not, however, return to work at ACCSC. IV. The Trial Yousef sued EYM and ACCSC, and the case proceeded to trial. Yousef presented Abdo, Othman, Yousef, and Edduweh as fact witnesses. He also presented Frank Telschow, a former EYM employee, by deposition. Telschow testified in pertinent part that the first time he removed the breaker panel cover it fell on him and, if he had not been wearing steel-toe boots, the panel cover would have cut off his toes when it fell. Telschow also testified that he had last removed the breaker panel cover two months before the accident. When he put the panel cover back on at that time, he was able to secure only five of the six screws on the sides of the panel cover because the top right screw was not functional and was not connected to the breaker panel box. Telschow also claimed he warned Abdo and one of the ACCSC –8– workers, but not Yousef, about the breaker panel cover on the day of the accident and told them they did not need to take the panel cover off to find the breaker connected to the disconnect switch. According to Telschow, three of the breakers were labeled “A”, “B”, and “C”, and the other three had no markings. The unmarked breakers went to the roof, so turning those breakers off posed no risk of turning power off to the interior of the restaurant. Abdo, Yousef, Othman, and Edduweh each denied speaking with Telschow about the breaker box that injured Yousef. Othman further testified that he did not speak to Telschow the morning of the accident and no one from Denny’s told him to watch out for the breaker panel or warned him to be careful when taking the panel cover off. Edduweh also stated he did not recall anyone from Denny’s telling him about the breaker cover. Yousef also presented the expert testimony of James Thomas Knorpp, a safety engineer. Knorpp testified that, in his expert opinion, EYM controlled the breaker panel, had the duty to maintain the panel and cover, and violated various Occupational Safety and Health Administration (OSHA) regulations, the National Electronics Code, and general industry regulations related to EYM’s maintenance of the breaker panel and cover. The violations included failing to mark the breakers to show the purpose of the breakers and what equipment they controlled, posting no warnings as to the hazard of the electrical panel and the condition of the cover, failing to repair the screws that were not adequately holding the brackets in place –9– against the metal to keep the cover in place, leaving one of the side brackets non- functional, and failing to maintain the cover in a secure condition. Further, EYM had the responsibility to ensure the condition of the equipment contractors such as ACCSC and Yousef worked on was safe. Knorpp also told the jury that ACCSC would have no responsibility for the maintenance that had been performed to date on the breaker box “unless they performed it at some earlier time.” However, per OSHA regulations, ACCSC, as Yousef’s employer, had the right to control Yousef’s work. Knorpp conceded that an employee has the responsibility to look at what he is doing and see if it looks safe to him before proceeding. However, he noted that the employee “can’t control the conditions of the equipment as it has been worked on previously and left” and can only look at something to make sure that it is, in his opinion, safe “to his ability to recognize it.” Yousef agreed he is responsible for his own safety if he feels something is unsafe. He also testified, however, that he had no idea any screws were loose or clamps were unfastened on the panel cover when he began removing it. Yousef maintained no gap between the cover and the box was visible to him before the accident. EYM’s evidence consisted of the testimony of its Facilities Manager, Larry Howard Wilson, and two expert witnesses, Roger Brian Tate and Sandra Lynn Whitaker. Wilson testified that he spoke with Abdo the morning of the accident by phone about replacing the disconnect switch. According to Wilson, Abdo conveyed –10– a concern that a lack of markings on the breakers could pose a problem with replacing the disconnect switch. Wilson told Abdo if the breakers were not marked, he should just shut one breaker off at a time until he found the right breaker. Wilson did not witness the accident and the record does not show he was on site the day of the accident. Wilson did take part in the on-site inspection of the breaker box and panel cover related to Yousef’s lawsuit, along with the parties’ experts and attorneys. During that inspection, Wilson removed the breaker panel cover for inspection. At trial, he explained how he removed the cover and gave his opinions concerning what the panel cover would have looked like on the day of the accident and how Yousef’s right hand ended up below the panel cover. Wilson suggested Yousef put his hand under the panel cover to try to lift it up and out because the side hooks were still engaged, causing the panel cover to become stuck. Wilson also stated that if the top right clamp was undone when Yousef arrived, there would have been a noticeable quarter-inch gap between the panel and the cover. And, if additional clamps were undone, Yousef would have seen “a gap all the way around until you get to a screw that has been tightened down.” Tate, a forensic, mechanical, and fire protection engineer, inspected the panel cover and breaker box with the other experts and attorneys. It is Tate’s opinion that the accident was caused by Yousef pulling and lifting the panel cover off of the bottom tabs of the breaker box and then being surprised by the weight of the panel and dropping the cover as a result. Tate questioned the veracity of Yousef’s –11– contention that he had only unscrewed between one and three of the screws when the cover fell. According to Tate, that was not possible because of how the panel cover was engineered. EYM’s final expert, Sandra Lynn Whitaker, described herself as a safety professional who evaluates issues surrounding OSHA regulations and how they may apply or not apply at any given accident scene. EYM relies on Whitaker’s testimony to support its factual sufficiency arguments on appeal. In her opinion, Yousef was the actual cause of his injury because he was not qualified or authorized under OSHA regulations or Texas law to remove the breaker panel cover. ACCSC’s case in chief consisted solely of further testimony from Abdo. He testified that he did not talk to Wilson or Telschow the day of the accident. He also maintained that he told Othman on the phone to concentrate on replacing the compressor unit and they would take care of the disconnect switch when Abdo got to the restaurant. The jury returned a unanimous verdict for Yousef. The jury answered four questions. In Questions 1 and 2, the jury found that EYM’s negligence was a proximate cause of the occurrence, Yousef was not negligent, and apportioned 0% of the responsibility for the occurrence to Yousef and 100% to EYM. In Question 3, the jury found that ACCSC was negligent and ACCSC’s negligence proximately caused the occurrence in question. Finally, in Question 4, the jury found $337,131.24 in past and future damages. –12–  Following trial, Yousef filed a motion to enter judgment on the verdict, and the trial court signed a final judgment on May 9, 2019. The final judgment rendered judgment on the verdict and ordered EYM and ACCSC jointly and severally liable to Yousef for the damages awarded in the judgment as well as prejudgment interest, post-judgment interest, and costs. EYM and ACCSC filed a joint motion for new trial, which was denied. This appeal followed. ANALYSIS In separate briefs, EYM and ACCSC raise multiple appellate issues, some of which overlap. Their appellate issues fall into four categories: factual sufficiency of the evidence to support certain jury findings, charge error, denial of their joint motion for new trial, and cumulative error. We will address their respective appellate issues by category below. I. Factual Sufficiency In a factual sufficiency review, appellate courts must examine the evidence that both supports and contradicts the jury’s verdict in a neutral light. Wise v. SR Dallas, LLC, 436 S.W.3d 402 , 408–09 (Tex. App.—Dallas 2014, no pet.) (citing Dow Chem. Co. v. Francis, 46 S.W.3d 237 , 242 (Tex. 2001) (per curiam)). In making this review, however, we are not a fact finder. The fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757 , 761 (Tex. 2003). We, therefore, defer to the jury’s implicit determinations of credibility and the weight to be given to the –13– evidence. Wise, 436 S.W.3d at 408 –09. Further, we may not substitute our own judgment for that of the fact finder merely because we might reach a different result. Bright v. Addison, 171 S.W.3d 588 , 595–96 (Tex. App.—Dallas 2005, pet. denied). In the context of a jury trial, the sufficiency of the evidence is reviewed in the light of the charge submitted if no objection is made to the charge. Romero v. KPH Consolidation, Inc., 166 S.W.3d 212 , 221 (Tex. 2005); Wal–Mart Stores, Inc. v. Sturges, 52 S.W.3d 711 , 715 (Tex. 2001). “If the evidence at trial ‘would enable reasonable and fair-minded people to differ in their conclusions,’ we will not substitute our judgment for that of the fact finder.” Atkinson v. Sunchase IV Homeowners Ass’n, Inc., No. 13-17-00691-CV, 2020 WL 2079093 , at *3 (Tex. App.—Corpus Christi–Edinburg Apr. 30, 2020, pet. filed) (mem. op.) (quoting City of Keller v. Wilson, 168 S.W.3d 802 , 822 (Tex. 2005)). The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. Bright, 171 S.W.3d at 595 –96; Barnett v. Coppell N. Tex. Court, Ltd., 123 S.W.3d 804 , 813–14 (Tex. App.—Dallas 2003, pet. denied). “Factual sufficiency points of error are designated as ‘insufficient evidence points’ or ‘great weight and preponderance points’, depending upon whether the complaining party had the burden of proof.” Raw Hide Oil & Gas, Inc. v. Maxus Expl. Co., 766 S.W.2d 264 , 275 (Tex. App.—Amarillo 1988, writ denied). Both types are asserted in this appeal. At issue here is the factual sufficiency of the evidence to support the jury’s answers to Question Numbers 1 and 2—the jury’s –14– determinations that Yousef was not negligent and EYM bore 100% of the responsibility for the occurrence. As such, EYM and ACCSC assert a “great weight and preponderance point” as to the findings that Yousef was not negligent, and EYM asserts an “insufficient evidence point” as to the findings that EYM was negligent and bore 100% responsibility for the occurrence. When a party attacks the factual sufficiency of the evidence to support a finding on an issue as to which it had the burden of proof, it must show that the adverse finding is against the great weight and preponderance of the evidence. PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699 , 722 (Tex. App.— Dallas 2011, pet. denied). “A finding is against the great weight and preponderance of the evidence if it is clearly wrong, manifestly unjust, or ‘shocks the conscience.’” Wal-Mart Stores Tex., LLC v. Bishop, 553 S.W.3d 648 , 663 (Tex. App.—Dallas 2018, pet. granted, judgm’t modified w.r.m.) (quoting Golden Eagle Archery, 116 S.W.3d at 761 ). When an appellant challenges the factual sufficiency of the evidence to support an adverse finding on an issue on which it did not have the burden of proof, the appellant must demonstrate that there is insufficient evidence to support the adverse finding. Hoss v. Alardin, 338 S.W.3d 635 , 651 (Tex. App.—Dallas 2011, no pet.). The evidence is insufficient for factual sufficiency purposes if, after reviewing all the evidence in the record, we determine the evidence supporting the jury finding is so weak or the finding is so against the overwhelming weight of the evidence that –15– the finding is clearly wrong and unjust. Weaver & Tidwell, L.L.P. v. Guarantee Co. of N. Am. USA, 427 S.W.3d 559 , 564–65 (Tex. App.—Dallas 2014, pet. denied) (citing Cain v. Bain, 709 S.W.2d 175 , 176 (Tex. 1986) (per curiam)); Hoss, 338 S.W.3d at 651 . A. Findings that Yousef was not negligent and bore 0% responsibility Question Numbers 1 and 2 presented the general negligence and proportionate responsibility questions to the jury as between EYM and Yousef: –16– EYM and ACCSC complain that the jury’s answers of “No” and “0%” as to Yousef in Question Numbers 1 and 2 are against the great weight and preponderance of the evidence. They contend those findings are clearly wrong and manifestly unjust because the evidence showed Yousef’s negligence proximately caused the occurrence in question. EYM and ACCSC maintain on appeal that Yousef’s negligence and proportionate responsibility were shown through two categories of evidence: (1) evidence that Yousef failed to use ordinary care to make sure the breaker panel box was safe for him to remove, and (2) expert testimony that Yousef was not qualified or authorized under federal or state law to enter the breaker box and remove the panel cover. First, EYM and ACCSC argue the jury findings as to Yousef’s negligence are against the great weight and preponderance of the evidence because the evidence showed that Yousef failed to use ordinary care to make sure the breaker panel box was safe for him to remove. Specifically, EYM and ACCSC contend Yousef’s own testimony showed he did not inspect the panel cover and failed to pay attention to any gaps between the cover and the box before he attempted to remove the cover. EYM and ACCSC also rely on Abdo’s testimony that he told Yousef not to remove the panel cover until Abdo arrived on site. Further, EYM and ACCSC maintain that Yousef’s decision to remove the panel cover and go into the breaker box constitutes a failure to use ordinary care that proximately caused the occurrence because he was purportedly not authorized to do so by EYM, OSHA regulations, and Texas law. –17–  To preserve a factual sufficiency challenge for appeal, a party must present the specific complaint to the trial court in a motion for new trial. TEX. R. CIV. P. 324(b)(2), (3); In re A.R.M., 593 S.W.3d 358 , 362 (Tex. App.—Dallas 2018, pet. denied); Defterios v. Dallas Bayou Bend, Ltd., 350 S.W.3d 659 , 664 (Tex. App.— Dallas 2011, pet. denied). To preserve error, the motion for new trial must state the factual sufficiency complaint with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. See, e.g., Halim v. Ramchandani, 203 S.W.3d 482 , 487 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (motion for new trial did not preserve factual sufficiency complaint because arguments asserted on appeal were not asserted in new trial motion); see also In re Commitment of Lopez, 462 S.W.3d 106 , 114 (Tex. App.—Beaumont 2015, pet. denied) (“An issue on appeal must comport with the objection made at trial; otherwise, the issue is not preserved for appellate review.”); TEX. R. APP. P. 33.1(a). Here, EYM and ACCSC did not raise these arguments regarding a failure to use ordinary care in their joint motion for new trial. They are, therefore, not preserved for appellate review, and we do not address the merits of these arguments.2 2 EYM and ACCSC mention two of the arguments raised on appeal—Yousef’s testimony that he saw no problems with the panel cover and the allegation that Yousef ignored Abdo’s instructions to wait to remove the panel until Abdo was present—in their “Joint Reply to Plaintiff’s Response to Joint Motion for New Trial.” Those arguments were not, however, included in the joint motion for new trial. The general inclusion of these arguments in a reply brief was insufficient to preserve these contentions for our review on appeal. See Shipley v. Holt Tex., LTD, No. 02-09-00122-CV, 2010 WL 1999016 , at *2, n.4 (Tex. App.— Fort Worth May 20, 2010, no pet.) (mem. op.) (questioning witnesses at hearing on motion for new trial regarding issues not raised in motion for new trial insufficient to preserve issues for review); TEX. R. CIV. P. 324(b)(2) (requiring factual sufficiency of the evidence to support a jury finding to be raised in “a point –18–  The factual sufficiency arguments EYM and ACCSC did raise in their joint motion for new trial and now assert on appeal center on the testimony of expert witness Sandra Lynn Whitaker. She testified at trial and through her expert report that Yousef was not qualified or authorized under OSHA regulations or Texas law to enter the breaker box, and he violated safety regulations by removing the panel cover because he was not a licensed electrician in the United States. Whitaker also testified that Yousef was not authorized in his role as an air conditioning technician to replace the disconnect switch because the Texas Occupations Code provides that a person may not perform electrical work unless the person holds the appropriate license. TEX. OCC. CODE § 1305.151. Air conditioning technicians are exempt from the licensing requirement, however, if the technician installs a disconnect switch where one had not been installed previously. 16 TEX. ADMIN CODE § 75.100(a)(2). According to Whitaker, Yousef was not exempt from the licensing requirement here because he was replacing a defective disconnect switch rather than installing a new disconnect switch where none had been before. On appeal, EYM and ACCSC argue the jury “should have found some responsibility on Yousef based on” this evidence. We disagree. The jury is the sole judge of the witnesses’ credibility and the weight to be given their testimony. Golden in a motion for new trial”); see also In re Commitment of Lopez, 462 S.W.3d at 114 (“The objection Lopez raised at trial—that the State’s argument appeals to the passions and prejudices of the jury—does not comport with his complaint on appeal that the State’s argument essentially encouraged the jurors to violate the trial court’s limiting instruction.”). –19– Eagle Archery, 116 S.W.3d at 761 . Moreover, it is within the province of the jury to weigh opinion evidence and the judgment of experts. Banks v. Columbia Hosp. at Med. City Dallas Subsidiary, L.P., 233 S.W.3d 64 , 67–68 (Tex. App.—Dallas 2007, pet. denied); Pilkington v. Kornell, 822 S.W.2d 223 , 230 (Tex. App.—Dallas 1991, writ denied). “It is the jury’s role ‘to resolve conflicts and inconsistencies in the testimony of any one witness as well as in the testimony of different witnesses.’” Dal–Chrome Co. v. Brenntag Sw., Inc., 183 S.W.3d 133 , 141 (Tex. App.—Dallas 2006, no pet.) (quoting Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538 , 542, 252 S.W.2d 561 , 563 (1952)). Here, the jury heard conflicting testimony from other witnesses, including the only witness to the accident, Yousef. In contrast to Whitaker’s testimony, Abdo testified he believed Yousef had the legal authority under Texas law to perform the work he was performing the day of the accident (i.e., to go into the electric panel to check the breaker). Yousef testified he had been in other breaker boxes in the past, including breaker boxes larger than the one at the Denny’s location, removed other panel covers many times, and used a clamp meter to test the breakers inside other electrical panels. Further, there is no evidence that Yousef did not hold the necessary license or certification required under the regulations cited by Whitaker to replace the disconnect box or remove the panel cover. Her opinion that he was not qualified was based on assumptions only. Yousef, however, testified he obtained an electrical certification in his native country of Jordan after completing a three-year certification program. –20– Yousef also had nearly five years of work experience with Abdo’s company that included electrical work as well as repair and maintenance on air conditioning equipment. Moreover, appellants did not request a negligence per se instruction, and none was given to the jury. Indeed, Whitaker did not testify that Yousef acted negligently by allegedly violating those statutes and regulations or that such violations proximately caused Yousef’s injury. Rather, her opinions as to Yousef’s alleged violations were limited to her opinions that (1) nothing indicates he was qualified or authorized to remove the panel cover under OSHA regulations and Texas law, and (2) he violated OSHA regulations by removing the panel cover because, by doing so, he exposed himself to energized wiring and the risk of electrocution hazards and injury. Whitaker viewed the unsafe condition created by these alleged violations as “the actual removal of the panel cover which exposed the energized electrical wiring,” not the allegedly negligent removal3 of the panel cover that resulted in Yousef dropping the cover on his hand and severing his fingertip. Whitaker’s testimony is, thus, insufficient to overturn the jury’s findings that Yousef was not negligent here and held no responsibility for the occurrence in question. 3 Whitaker also testified generally that Yousef was the actual cause of his injury because he “made the decision to remove the panel cover without the valid experience to know how to remove that cover and how to protect himself from that issue of the handling of that heavy cover.” EYM and ACCSC, however, do not rely on that generalized opinion to support their factual sufficiency point on appeal. –21–  Here, the only witness to the accident was Yousef. The jury heard from Yousef directly and was free to believe him. Even Abdo, who owned ACCSC and was an adverse witness in the case, corroborated Yousef’s testimony regarding his skills and experience as an electrician and the belief that he was legally authorized to remove the panel cover. The jury also heard conflicting evidence as to the alleged negligence of Yousef in the removal of the panel cover. The conflicting evidence came from experts hired by the defendants, the defendants themselves, or witnesses affiliated with the defendants. The jury was free to believe one witness, disbelieve another, and resolve inconsistencies in the testimony. See Dal–Chrome Co., 183 S.W.3d at 141 . The jury chose to believe Yousef. Considering all of the evidence, we conclude the jury’s findings on the issues of Yousef’s negligence and proportionate responsibility are not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Accordingly, we overrule EYM’s first issue and ACCSC’s third issue. B. EYM’s negligence in Question Numbers 1 and 2 In its second issue, EYM complains the evidence is factually insufficient to support the jury’s findings that EYM’s negligence proximately caused the occurrence, and EYM was 100% responsible for the occurrence. EYM did not raise these complaints in its motion for new trial. EYM, therefore, did not preserve the factual sufficiency point as to its own negligence and proportionate responsibility for appellate review. See TEX. R. CIV. P. 324(b)(2), (3); see also In re A.R.M., 593 –22–  S.W.3d at 362; Defterios, 350 S.W.3d at 664 . Accordingly, we overrule EYM’s second issue. II. Charge Error EYM and ACCSC also contend the trial court erred in its submission of the case to the jury. First, they complain the trial court abused its discretion by denying their requests to include EYM, ACCSC, and Yousef in the proportionate responsibility question (Question Number 2). Next, ACCSC contends the jury charge contained improper instructions as to the meanings of “negligence” and “ordinary care” as they related to ACCSC. Finally, ACCSC argues the trial court abused its discretion by questioning the jury as to ACCSC’s liability under a general negligence theory. As a preliminary matter, Yousef contends EYM and ACCSC waived these alleged charge errors by failing to object to the trial court’s jury charge. We agree. As part of their required pretrial filings, each party filed a proposed jury charge. EYM and ACCSC’s proposed jury charges included the questions, instructions, and definitions they contend on appeal should have been included in the charge. EYM and ACCSC’s pretrial proposed jury charges each included a proportionate responsibility question that asked the jury to determine the percentage of responsibility attributable to each person the jury found caused or contributed to cause the injury as between EYM, ACCSC, and Yousef. Similarly, ACCSC’s proposed jury charge included the definitions of “negligence” and “ordinary care” –23– ACCSC now argues the court should have included in the charge, as well as the form of the liability question as to ACCSC’s liability it maintains would have been proper here. The charge conference consisted of the following comments by the trial judge and counsel: THE COURT: We are on the record. I have provided -- I have considered the Court -- the proposed charge from Plaintiff and both Defendants, and I have prepared and I’m going to submit the Court’s charge which is different from both. To the extent that the Court’s charge includes language which either Plaintiff or Defendant has not included in their proposed charge, the objection to the inclusion of same is overruled, the request to excise same is denied. To the extent that the Court’s charge does not include language proffered by either Plaintiff or Defendants, the request -- the objection to said exclusion is denied, the request to include such language is refused. The trial judge then asked EYM’s counsel and ACCSC’s counsel if they had “any other objections to the charge that has [sic] not been addressed by the Court?” EYM’s counsel responded “No, Your Honor.” ACCSC’s counsel also responded “No, Your Honor.” That was the extent of the charge conference. EYM and ACCSC argue on appeal that the record of the charge conference shows they objected to the court’s charge, presumably by submitting the pretrial proposed charges, and those “objections” were overruled. EYM further argues that it would have been “superfluous” to make objections after the trial judge stated he –24– had overruled objections and doing so “would have angered” or “displeased” the trial judge. Indeed, the trial judge appears to have validated counsel’s fears at the hearing on appellants’ joint motion for new trial by telling counsel that he believed making further objections following his statements at the charge conference would have been a “superfluous,” ill-advised, and “hazardous” move by counsel. The following discussion took place at the new trial hearing regarding Yousef’s argument that EYM and ACCSC waived their objections to the proportionate responsibility question by failing to object to the inclusion of ACCSC in that question: [YOUSEF’S COUNSEL]: And a 166 submission, it doesn’t substitute the necessity requirement for them to object to the jury charge -- THE COURT: Well, my -- [YOUSEF’S COUNSEL]: -- during the charge conference. THE COURT: -- my recollection is that I instructed the lawyers that to the extent that the Court’s charge did not include language that had been submitted as a part of the 166(a) submission, that the objection to not including that was overruled, did I not? [YOUSEF’S COUNSEL]: That is true, Your Honor. They still had an opportunity on the record or in writing to make that objection and they did not. THE COURT: But based on my statement then they -- they would have been just being superfluous and I would have said, “Counsel, I’ve already – I’ve already taken care of that.” Isn’t that right? I mean, as a practical matter -- [YOUSEF’S COUNSEL]: I hesitate to concede that, Your Honor. THE COURT: Well, I -- Well, then, I’ll push you a little bit further. –25–  If I tell a party -- If I tell a lawyer that I’ve ruled on their objection -- If I tell you that I’ve ruled on your objection, you certainly would not -- and I overrule your objection, you certainly, as a prudent and effective practitioner in this Court, would not continue to urge that objection, would you? Of course you wouldn’t. [YOUSEF’S COUNSEL]: I wouldn’t; however, Your Honor, to comply with Rule 273 I would ask you respectfully if I could elaborate on exactly which objection because -- THE COURT: And assuming that I tell you, “No, you may not; I’ve reviewed all of your objections and I’m overruling all of your objections,” the next thing -- if you don’t say, “Yes, sir”, the next thing is, “Counsel, you need to be seated now. I’ve already ruled.” Isn’t that right? [YOUSEF’S COUNSEL]: That is correct. THE COURT: I mean, you’re asking – you’re asking Mr. Shaw to take the -- if not untenable, the hazardous position of arguing with me after I’ve made a ruling, something you certainly would not recommend co- counsel to do, right? [YOUSEF’S COUNSEL]: I would not recommend that to my colleagues and associates. I would not recommend that, Your Honor, you are correct. THE COURT: All right. [YOUSEF’S COUNSEL]: It is hazardous to do that in your courtroom. The trial judge in this case has a reputation for running a highly efficient courtroom in which he holds all parties to strict time limits for putting on their case. The record here shows this case was no exception. The truncated “charge conference” appears to be one way in which the trial judge moves cases along and gets cases to the jury quickly. While we applaud the trial judge’s efficiency and respect for the jurors’ –26– time, the use of a global denial of objections and requests based solely on the parties’ pretrial submission of proposed jury charges does not preserve issues of charge error for appellate review. See, e.g., Clark v. Dillard’s, Inc., 460 S.W.3d 714 , 729–30 (Tex. App.—Dallas 2015, no pet.); see also TEX. R. CIV. P. 272, 273, 274. The reason is simple; a proposed jury charge filed pretrial standing alone does not meet the preservation of error requirements of rules 272, 273, and 274. A. Applicable law To preserve error in the charge, the court must be informed of the error before the charge is formally submitted to the jury. Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817 , 830 (Tex. 2012) (citing TEX. R. CIV. P. 272). “A charge filed before trial begins rarely accounts fully for the inevitable developments during trial. For these reasons, our procedural rules require that requests be prepared and presented to the court ‘within a reasonable time after the charge is given to the parties or their attorneys for examination.’” Id. at 831 (quoting TEX. R. CIV. P. 273). “Although trial courts must prepare and deliver the charge, we cannot expect them to comb through the parties’ pretrial filings to ensure that the resulting document comports precisely with their requests—that is the parties’ responsibility.” Cruz, 364 S.W.3d at 831 . “The aggrieved party must show that the trial court was aware of the party’s request and denied it.” Id. at 830. The trial court’s awareness “is the key.” Id. at 831 . To that end, the rules require specificity when making objections and requests. Rule 274 provides, “A party objecting to a charge must point out distinctly the –27– objectionable matter and the grounds of the objection.” TEX. R. CIV. P. 274. “Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.” Id. The rule creates a two-pronged test: objections to the charge must specify the error and the legal basis of the objection. Sears, Roebuck & Co. v. Abell, 157 S.W.3d 886 , 892 (Tex. App.—El Paso 2005, pet. denied) (citing Castleberry v. Branscum, 721 S.W.2d 270 , 276-77 (Tex. 1986)). Rule 274 is strictly construed and embodies a “rigorous standard for sufficiency of charge objections.” Meyers v. 8007 Burnet Holdings, LLC, 600 S.W.3d 412 , 421–22 (Tex. App.—El Paso 2020, pet. denied) (quoting Abell, 157 S.W.3d at 892 ). “Our procedural rules are technical, but not trivial.” Burbage v. Burbage, 447 S.W.3d 249 , 258 (Tex. 2014). And, although we construe those rules liberally so that the right to appeal is not lost unnecessarily, “we cannot make assumptions” when an objection fails to explain the nature of the error. Id. “Preservation of error reflects important prudential considerations recognizing that the judicial process benefits greatly when trial courts have the opportunity to first consider and rule on error.” Id. “Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objection.” Clark, 460 S.W.3d at 729 –30 (quoting TEX. R. CIV. P. 274). If an objection is not sufficient to apprise the trial court of the issue a party later claims is error on appeal, the issue must be overruled. Meyers, 600 S.W.3d at 422 –24. –28–  B. Application of the law to the facts This Court has previously reviewed the global denial utilized by this trial judge. We determined a party’s failure to lodge objections to the charge following the judge’s statements waived that party’s allegations of charge error on appeal. Clark, 460 S.W.3d at 729 –30. In Clark, as here, the trial judge held the same truncated “charge conference” and made the nearly identical global denial of the parties’ requested instructions and questions: The Court: We’re back on the record. I have given to—I discussed with counsel the form of the proposed charge to give to the jury. To the extent that either Plaintiff or Defendant has requested instructions or questions that are not included with the charge—in my charge, the request to include same is denied, the objection to the failure to include same is overruled. To the extent that the Court’s charge includes instructions and/or questions which either party has not included in its proposed charge, the request to excise same is denied, the objection to the failure to excise same is overruled. Okay? [Clark’s attorney]: Yes, Your Honor. The Court: I think that covers all the objections to the charge. Id. at 730. There, as here, appellant argued the trial court’s global denial of objections was sufficient to preserve appellant’s allegations of charge error. Id. We disagreed and concluded that neither the “charge conference” nor any other part of the record showed that appellant had timely objected to the jury questions that he sought to complain about on appeal. Id. The same is true here. –29–  The parties’ proposed charges included no objections to the other parties’ proposed charges and included no legal analysis explaining why each instruction, definition, and question included in the proposed charges were in substantially complete form and should be submitted to the jury. Although ACCSC cited to the Texas Pattern Jury Charges, those citations merely provided the legal authority for the form of the proposed charge, not ACCSC’s legal basis for including each question, instruction, and definition in its proposal. Mere citation to the pattern jury charges was, thus, insufficient to preserve error. And EYM’s proposed charge included no citations to authority. These pretrial filings were merely a starting point provided before the case was even called to trial. But more importantly, the pretrial proposed charges, standing alone, did not apprise the trial judge of the purported problems with and errors in the court’s charge that EYM and ACCSC now assert on appeal, nor did they give the trial judge an opportunity to cure those purported errors. For an issue to be preserved for appeal, the party raising the issue must first raise it with the trial court and give the trial court the opportunity to consider and rule on the alleged error. TEX. R. APP. P. 33.1(a); Burbage, 447 S.W.3d at 257 –58; Cruz, 364 S.W.3d at 829 . The inquiry about whether a party adequately preserved an alleged jury charge error for appeal focuses on the trial court’s awareness of and opportunity to remedy the alleged problem. Cruz, 364 S.W.3d at 829 –31 (citing State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235 , 240 (Tex.1992)); see also Alaniz v. Jones & Neuse, Inc., –30–  907 S.W.2d 450 , 451–52 (Tex.1995) (per curiam) (party preserved alleged charge error concerning omission of question for future lost profits by submitting written damages question that included future lost profits and objecting on the record to the omission of future lost profits from the court’s charge). As the Texas Supreme Court noted in Cruz, “trial court awareness is the key.” 364 S.W.3d at 831 . And, here, there is no indication in the record that the trial court was aware of appellants’ concerns regarding the omission of ACCSC from the proportionate responsibility question, the lack of general definitions of negligence and ordinary care as those terms related to ACCSC, or ACCSC’s complaint regarding submission of its liability in a general negligence question. EYM and ACCSC argue in their third and fourth issue respectively that the jury charge should have included EYM, ACCSC, and Yousef in the proportionate responsibility question. The record, however, includes no discussions regarding proportionate responsibility as applied in this case. Yousef’s proposed charge did not include a proportionate responsibility question, whereas EYM and ACCSC’s pretrial proposals included proportionate responsibility questions that included spaces for the jury to allocate responsibility between EYM, ACCSC, and Yousef. The trial court rejected those pretrial proposals by submitting EYM and Yousef in the proportionate responsibility question. But nothing in the record shows that EYM and ACCSC requested or intended to request a proportionate responsibility question submitting all three parties after the close of evidence. Had either EYM or ACCSC –31– made such a request at the charge conference, however, it is possible the court would have submitted the proportionate responsibility question as requested. At a minimum, the trial judge would have been aware of EYM and ACCSC’s complaint regarding the court’s proportionate responsibility question and had an opportunity to correct the charge or deny the request and overrule the objection. But neither EYM nor ACCSC gave the trial judge that opportunity. Similarly, ACCSC argues in its first issue that the charge erroneously omitted general definitions of “negligence” and “ordinary care” as related to ACCSC. All three parties included separate definitions for those terms as they related to EYM and ACCSC in their proposed charges. Yet, the trial court’s charge included no definitions related specifically to ACCSC. It is, therefore, possible if not probable that the omission of definitions related to ACCSC was simply an oversight. On this record, however, we will never know if that is the case because neither EYM nor ACCSC raised the issue at the charge conference. Indeed, there is no discussion in the record concerning the definitions of “negligence” and “ordinary care” as between EYM and ACCSC. Finally, ACCSC argues in its second issue that the trial court erred by submitting a liability question against ACCSC under a general negligence theory. Again, ACCSC did not bring this complaint to the trial court’s attention at trial. Moreover, ACCSC’s pretrial proposed charge did not include the question ACCSC now maintains the trial court should have submitted. Rather, ACCSC’s proposed –32– charge included a general negligence question substantially similar to the one submitted to the jury. Here, the trial judge had no awareness of the complaint ACCSC now asserts on appeal. By asserting no objections to the court’s charge and submitting no requested instructions, questions, or definitions after the close of evidence but before the charge was read to the jury, EYM and ACCSC failed to make the trial judge aware of the complaints of charge error they now make on appeal. Those complaints are, therefore, waived. See Cruz, 364 S.W.3d at 831 (holding party could complain on appeal only if it made trial court aware, timely and plainly, of purported problem and obtained a ruling); see also Tex. Youth Comm’n v. Koustoubardis, 378 S.W.3d 497 , 501 (Tex. App.—Dallas 2012, no pet.) (“Nothing about TYC’s objection would have made the trial court aware that TYC was concerned the question regarding the section 64.102 claim would “lower the causation standard of proof” on the whistleblower claim”). Although we sympathize and vehemently disagree with the predicament the trial judge placed trial counsel in, fear of ridicule or reprimand by a trial judge should not stand in the way of protecting the appellate rights of one’s client. Moreover, there are various ways to preserve error within the confines of a tightly run courtroom. Examples here would have included asking the trial judge for a few minutes on the record to make formal objections and requests and obtain rulings regarding specific issues with the charge, or filing written objections and requests and obtaining written –33– rulings or rulings on the record. We are confident and would certainly hope the trial judge, when presented with timely, organized, and professional efforts to create a record to preserve error, would oblige such efforts. On this record, however, we cannot say that the trial court had the opportunity to remedy the alleged charge errors. Consequently, EYM and ACCSC have waived these complaints on appeal. See TEX. R. CIV. P. 272, 273, 274, 279; TEX. R. APP. P. 33.1(a); see also Burbage, 447 S.W.3d at 256 ; Cruz, 364 S.W.3d at 831 ; Nowlin v. Keaton, No. 03-14-00608-CV, 2015 WL 3542895 , at *4 (Tex. App.—Austin June 4, 2015, no pet.) (mem. op.) (issues of charge error waived where there was no discussion on the record of the issues raised on appeal and the party did not object to the question submitted to the jury.). Accordingly, we overrule EYM’s third issue and ACCSC’s first, second, and fourth issues. C. ACCSC is not entitled to rendition of judgment notwithstanding the verdict based on alleged charge error. ACCSC also argues it is entitled to rendition of judgment in its favor because Yousef failed to object to the exclusion of definitions of “negligence” and “ordinary care” related specifically to ACCSC under a general negligence theory. ACCSC contends the charge should have included the general definitions of “negligence” and “ordinary care” that applied to the negligence claim asserted against ACCSC. According to ACCSC, by failing to include those definitions in the charge, the wrong theory of negligence was asserted against ACCSC, and the jury essentially found –34– ACCSC negligent on a premises liability theory. Relying on United Scaffolding v. Levine, 537 S.W.3d 463 (Tex. 2017), ACCSC argues the only remedy for this error is to reverse and render judgment for ACCSC because Yousef did not object when the correct definitions were excluded from the charge. ACCSC is incorrect for two reasons. First, ACCSC’s reliance on United Scaffolding is misplaced because Yousef pleaded a general negligence claim against ACCSC and obtained a liability finding from the jury based on general negligence at trial. In United Scaffolding, the plaintiff, James Levine, pleaded one theory (premises liability) and obtained a jury finding on a different theory (general negligence). 537 S.W.3d at 472 –73, 480–81. Under those circumstances, Levine waived error because he obtained a jury finding on an unpleaded claim, and the court reversed the judgment against United Scaffolding. Id. at 481. The same result is not appropriate here because Yousef’s pleadings against ACCSC match the jury question and jury’s findings against ACCSC. Namely, Yousef pleaded a general negligence claim against ACCSC and obtained a jury finding on that claim. Second, United Scaffolding preserved its arguments that the verdict was based on an improper theory of recovery by filing a motion for judgment notwithstanding the verdict. United Scaffolding, 537 S.W.3d at 482 . Here, ACCSC filed no such motion and makes no such argument. ACCSC merely asserts charge error here. ACCSC waived any complaint about the charge by failing to object to the charge as –35–  discussed above. And, by failing to file a motion for judgment notwithstanding the verdict or other qualifying post-verdict motion raising this argument, ACCSC also waived any complaint that Yousef was not entitled to obtain a jury finding as to ACCSC’s general negligence. Accordingly, this is an additional basis under which we overrule ACCSC’s first and second issues. III. Denial of Motion for New Trial EYM and ACCSC further complain that the trial court denied their joint motion for new trial. We review a trial court’s denial of a motion for new trial for abuse of discretion. Waffle House, Inc. v. Williams, 313 S.W.3d 796 , 813 (Tex. 2010); Aztec Sys., Inc. v. Prevett, No. 05-18-00183-CV, 2019 WL 1417172 , at *3 (Tex. App.—Dallas Mar. 29, 2019, no pet.) (mem. op.) (citing Dugan v. Compass Bank, 129 S.W.3d 579 , 582 (Tex. App.—Dallas 2003, no pet.)). “Under this standard, we may not overrule the trial court’s decision unless the trial court acted unreasonably or in an arbitrary manner, without reference to guiding rules or principles.” James v. Witherite, No. 05-17-00799-CV, 2018 WL 5869641 , at *11 (Tex. App.—Dallas Nov. 9, 2018, no pet.) (mem. op.) (citing Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223 , 226 (Tex. 1991)). EYM and ACCSC raised two grounds for a new trial. First, they argued the verdict was against the great weight and preponderance of the evidence. As discussed above, we conclude the evidence was factually sufficient to support the verdict. The evidence at trial was conflicting, but the jury weighed that evidence, –36– judged the credibility of the witnesses, and returned a verdict in favor of Yousef. Accordingly, the trial court did not abuse its discretion by denying a new trial on EYM’s and ACCSC’s arguments that the verdict was against the great weight and preponderance of the evidence. See Aztec Sys., 2019 WL 1417172 , at *5 (“Nor did the trial court act without reference to guiding rules and principles by overruling Aztec’s motion for new trial where there was legally and factually sufficient evidence to support the jury’s findings.”). Second, EYM and ACCSC argued the failure to include ACCSC in the proportionate responsibility question entitled them to a new trial. As discussed above, EYM and ACCSC failed to preserve that error for review and cannot revive that argument by raising it for the first time in a motion for new trial. See Plaza at Turtle Creek, Ltd. v. Henry Bldg., Inc., No. 08-00-00416-CV, 2002 WL 59603 , at *4 (Tex. App.—El Paso Jan. 17, 2002, no pet.) (mem. op.) (“Charge error may not be raised for the first time in a motion for new trial.”) (citing Volkman v. Eakman, 496 S.W.2d 752 , 757 (Tex. Civ. App.—Fort Worth 1973, writ ref’d n.r.e.)). Moreover, the charge was legally correct. First, as a nonsubscriber, ACCSC was not entitled to have its responsibility compared with Yousef’s responsibility. See Kroger Co. v. Keng, 23 S.W.3d 347 , 352 (Tex. 2000) (non-subscribing employer is not entitled to a jury question on its employee’s alleged comparative responsibility); see also TEX. LAB. CODE § 406.033(a). A proportionate –37– responsibility question comparing the responsibility of EYM, ACCSC, and Yousef would have, therefore, been legally incorrect. Second, the rule of joint and several liability applies here. See Landers v. E. Tex. Salt Water Disposal, 151 Tex. 251 , 256, 248 S.W.2d 731 , 734 (1952). “Where the tortious acts of two or more wrongdoers join to produce an indivisible injury, that is, an injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers, all of the wrongdoers will be held jointly and severally liable for the entire damages and the injured party may proceed to judgment against any one separately or against all in one suit.” Id. at 734. In Landers, the plaintiff alleged the pipelines of two separate defendants broke and poured saltwater and oil into the plaintiff’s lake, producing an indivisible injury. Id. at 731–32. The supreme court held that these allegations were sufficient to assert joint and several liability. Id. at 734. Here, the premises tort liability of EYM and the negligence tort liability of ACCSC cannot be apportioned with reasonable certainty between EYM and ACCSC because there was one, indivisible injury. Accordingly, joint and several liability was the only possible judgment following the jury finding that EYM and ACCSC’s negligence proximately caused the occurrence. As such, it was not an abuse of discretion to deny a new trial on that ground. See Lakes of Rosehill Homeowners Ass’n, Inc. v. Jones, 552 S.W.3d 414 , 418, 422 (Tex. App.—Houston [14th Dist.] 2018, no pet.). We overrule EYM’s fourth issue and ACCSC’s fifth issue. –38– IV. Cumulative Error Finally, EYM Diner and ACCSC contend the cumulative error doctrine entitles them to a new trial. We disagree. Under the cumulative error doctrine, multiple errors, even if considered harmless when taken separately, may result in reversal and remand for a new trial if the cumulative effect of such errors is harmful. Lakeside Vill. Homeowners Ass’n, Inc. v. Belanger, 545 S.W.3d 15 , 46–47 (Tex. App.—El Paso 2017, pet. denied); Brown v. Hopkins, 921 S.W.2d 306 , 319 (Tex. App.–Corpus Christi–Edinburg 1996, no writ). To show cumulative error, an appellant must show that, based on the record as a whole, but for the alleged errors, the jury would have rendered a verdict favorable to it. Town East Ford Sales, Inc. v. Gray, 730 S.W.2d 796 , 810 (Tex. App.—Dallas 1987, no writ). To make that determination, this Court considers all errors in the case along with the record as a whole to determine if the errors collectively were calculated to cause and probably did cause the rendition of an improper judgment. Belanger, 545 S.W.3d at 46 –47. The cumulative error doctrine does not apply when an appellate court determines the trial court committed no errors. In re A.M., 418 S.W.3d 830 , 844 (Tex. App.—Dallas 2013, no pet.). The cumulative error doctrine does not apply in this case because we have not found any errors committed by the trial court. See id.; see also Univ. of Tex. v. Hinton, 822 S.W.2d 197 , 205 (Tex. App.—Austin 1991, no writ). Accordingly, we overrule EYM’s fifth issue and ACCSC’s sixth issue. –39–  CONCLUSION For the foregoing reasons, we conclude the evidence is factually sufficient to support the jury’s findings of negligence, find no charge error, conclude the trial court did not abuse its discretion by denying appellants’ joint motion for new trial, and find no cumulative error. Accordingly, we overrule appellants’ issues and affirm the judgment. /Robbie Partida-Kipness/ ROBBIE PARTIDA-KIPNESS JUSTICE 190636F.P05 –40–  Court of Appeals Fifth District of Texas at Dallas JUDGMENT EYM DINER L.P. D/B/A DENNY'S On Appeal from the 14th Judicial AND AIR CONDITIONING District Court, Dallas County, Texas CONTROL SERVICE COMPANY, Trial Court Cause No. DC-18-00546. Appellants Opinion delivered by Justice Partida- Kipness. Justice Nowell No. 05-19-00636-CV V. participating. KHALED YOUSEF, Appellee In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee KHALED YOUSEF recover his costs of this appeal from appellants EYM DINER L.P. D/B/A DENNY'S AND AIR CONDITIONING CONTROL SERVICE COMPANY. Judgment entered this 24th day of November, 2020. –41–

2020-01-17 22:01:49.025433+00

Trttssell

*121OPINION. Trttssell : The allegation of error makes reference to prior years, but these are not before us. The sole issue in this proceeding is the propriety of allowing the deductions from the opening and the closing inventories of the petitioner for the year ended January 31, 1922, of amounts of cash discounts arrived at by a process of averaging. Section 203 of the Revenue Act of 1921 provides for the use of inventories whenever they are necessary in order to determine clearly the income, and it leaves to the Commissioner, with the approval of *122the Secretary, the duty of prescribing such bases as will conform as nearly as may be to the best accounting practice in the trade or business, and also as most clearly reflecting income. The regulations of the Commissioner are published in Eegulations 62, articles 1581 to 1588, inclusive. A perusal of these articles makes plain the reason for the use of the word “ clearly ” throughout section 203 of the statute rather than “ exactly ” or “ accurately.” At best, the average retail inventory, due to the physical difficulties involved in its taking and to the necessity for the exercise of experienced personal judgment, can be but an approximation. We select from the articles of the regulations the following, as of particular reference to the issue here under consideration: ART. 1582. * * * An inventory that can be used under the best accounting* practice in the balance sheet showing the financial position of the taxpayer can, as a general rule, be regarded as clearly reflecting his income. * * * Art. 1583. Inventories at cost. — Cost means: (1) In the case of merchandise on hand at the beginning of the taxable year, the inventory price of such goods. (2) In the case of merchandise purchased since the beginning of the taxable year, the invoice price less trade or other discounts, except strictly cash discounts, approximating a fair interest rate, which may be deducted or not at the option of the taxpayer, provided a consistent course is followed. To this net invoice price should be added transportation or other necessary charges incurred in acquiring possession of the goods. (3) In the ease of merchandise produced by the taxpayer since the beginning of the taxable year (a) the cost of raw materials and supplies entering into or consumed in connection with the product, (6) expenditures for direct labor, (c) indirect expenses incident to and necessary for the production of the particular article, including in such indirect expenses a reasonable proportion of management expenses, but not including any cost of selling or return on capital, whether by way of interest or profit. (4) In any industry in which the usual rules for computation of cost of production are inapplicable, costs may be approximated upon such basis as may be reasonable and in conformity with established trade practice in the particular industry. Among such cases are (a) farmers and raisers of live stock (see article 1586), (⅞) miners and manufacturers who by a single process or uniform series of processes derive a product of two or more kinds, size or grade, the unit cost of which is substantially alike (see article 1587), and retail merchants who use what is known as the “ retail method ” in ascertaining approximate cost, gee article 1588. In Warfield-Pratt-Hoviell Co., 13 B. T. A. 305, we had occasion to discuss at length the present status of accounting practice with relation to cash discounts. Accounting authorities differ. The division of opinion among the accountants is reflected in the option allowed in the regulations to either deduct or not deduct the cash discounts, provided whatever method is selected be consistently followed every year. The petitioner thoroughly qualifies in consistency; the method it contends for has been followed for many years *123with the exception of the taxable year when the respondent refused to allow it. Since petitioner clearly had the right under the regulations to deduct the cash discounts, the issue as it presents itself to us is largely if not entirely one of fact. The facts are undisputed and are set out in full in the findings. The petitioner seeks to deduct from invoice prices, for inventory purposes, summary averages representing allowances for cash discounts rather than exactly the discounts actually allowed. We have had occasion to consider similar issues repeatedly, and have uniformly decided that, where it appeared that substantial accuracy had been achieved, the averaged allowances for cash or other discounts should be allowed as reductions of the inventories there under consideration. Higginbotham-Bailey-Logan Co., 8 B. T. A. 566; Leedom & Worrall Co., 10 B. T. A. 825; Holeproof Hosiery Co., 11 B. T. A. 547; Blumherg Brothers Co., 12 B. T. A. 1021. In the instant case it is possible to distinguish points at which the averages as applied to the whole inventory manifestly must depart somewhat from strict exactitude. Nevertheless, we are satisfied that the allowances are substantially correct, and we think deducting them from the inventories more clearly reflects income and financial position than does the method of the respondent. In our opinion, the cost of goods sold should be revised to give effect to the reductions of the opening and closing inventories by the allowances for cash discounts claimed by the petitioner. Judgment will he entered vmder Bule BO.

2021-01-26 21:00:45.97153+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2021/01/26/18-72904.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ROGACIANO CABRERA-VALENCIA, No. 18-72904 Petitioner, Agency No. A078-269-474 v. MEMORANDUM* ROBERT M. WILKINSON, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 20, 2021** Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges. Rogaciano Cabrera-Valencia, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for withholding of removal. We have jurisdiction under 8 U.S.C. § 1252 . We review for substantial * 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). evidence the agency’s factual findings, applying the standards governing adverse credibility determinations under the REAL ID Act. Shrestha v. Holder, 590 F.3d 1034 , 1039-40 (9th Cir. 2010). We review de novo claims of due process violations in immigration proceedings. Jiang v. Holder, 754 F.3d 733 , 738 (9th Cir. 2014). We deny the petition for review. Substantial evidence supports the agency’s adverse credibility determination based on Cabrera-Valencia’s statements to immigration officials that he did not fear returning to Mexico and his vague testimony about the PRD political party. See Shrestha, 590 F.3d at 1048 (adverse credibility determination reasonable under “the totality of circumstances”). We do not consider Cabrera-Valencia’s contentions concerning the origins of the Knights Templar and his brothers’ disappearances. See Santiago-Rodriguez v. Holder, 657 F.3d 820 , 829 (9th Cir. 2011) (review limited to the grounds relied on by the BIA). Thus, Cabrera- Valencia’s withholding of removal claim fails. Cabrera-Valencia’s contention that his right to due process was violated by not being able to access records fails. See Lata v. INS, 204 F.3d 1241 , 1246 (9th Cir. 2000) (requiring error to prevail on a due process claim). Cabrera-Valencia’s request to remand to clarify testimony and apply for adjustment of status is denied. PETITION FOR REVIEW DENIED. 2 18-72904

2021-01-26 21:00:46.332173+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2021/01/26/17-70033.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERTO BLANCO-MARTINEZ, No. 17-70033 Petitioner, Agency No. A074-438-408 v. MEMORANDUM* ROBERT M. WILKINSON, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted January 11, 2021 San Francisco, California Before: WALLACE and M. SMITH, Circuit Judges, and RESTANI,**Judge. Roberto Blanco-Martinez (Blanco-Martinez), a native and citizen of El Salvador, petitions for review of the decision of the Board of Immigration Appeals (BIA) dismissing his appeal of the Immigration Judge’s (IJ) denial of his requests for asylum, withholding of removal, and withholding of removal under the * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252 . We review for substantial evidence the BIA’s conclusion that an applicant has not established eligibility for asylum, see Madrigal v. Holder, 716 F.3d 499 , 503 (9th Cir. 2013), and relief under CAT, Zheng v. Ashcroft, 332 F.3d 1186 , 1193 (9th Cir. 2003). We conclude that substantial evidence supports the BIA’s denial of asylum, withholding of removal, and relief under CAT. To qualify for asylum, a petitioner’s “well-founded fear of persecution must be both subjectively genuine and objectively reasonable.” Sael v. Ashcroft, 386 F.3d 922 , 924 (9th Cir. 2004) (citation omitted). Blanco-Martinez did not present evidence showing that the chain of events he speculates about in his testimony is likely to occur or that his prior military affiliation would be broadcasted such that he had an objectively reasonable fear of persecution. See Gu v. Gonzales, 454 F.3d 1014 , 1021–22 (9th Cir. 2006) (holding that Petitioner’s fears based on information gathered from family and friends and a brief detention constituted “speculation” and not “objective evidence demonstrating a well-founded fear of persecution”). Thus, substantial evidence supports the BIA’s conclusion that Blanco-Martinez did not establish a well-founded fear of future persecution as required by 8 U.S.C. § 1158 (b)(1)(B)(i). Although the IJ did not give Blanco-Martinez notice that corroboration of his testimony was required or an opportunity to produce it at his final hearing, 2 Blanco-Martinez had multiple opportunities to corroborate his testimony in four hearings. Furthermore, any argument that Blanco-Martinez did not receive sufficient notice and opportunity to present corroborative evidence under Ren v. Holder, 648 F.3d 1079 , 1093 (9th Cir. 2011), is waived on appeal because he failed to raise the issue in his opening brief. See Smith v. Marsh, 194 F.3d 1045 , 1052 (9th Cir. 1999). Because Blanco-Martinez failed to meet his burden for asylum, the BIA’s determination that Blanco-Martinez failed to meet the higher standard withholding of removal requires is also supported by substantial evidence. Alvarez-Santos v. I.N.S., 332 F.3d 1245 , 1255 (9th Cir. 2003). Substantial evidence also supports the BIA’s denial of withholding of removal under the CAT. Blanco-Martinez presented evidence of widespread criminality and violence in El Salvador, without sufficiently showing how he would specifically be targeted, which is not enough to establish eligibility for relief under the CAT. Delgado-Ortiz v. Holder, 600 F.3d 1148 , 1152 (9th Cir. 2010). Blanco-Martinez’s concerns regarding the Salvadoran police’s inability to protect him from gang violence, are not enough to establish government acquiescence to torture because “[a] government does not acquiesce in the torture of its citizens merely because it is aware of torture but powerless to stop it.” Garcia-Milian v. Holder, 755 F.3d 1026 , 1034 (9th Cir. 2014) (internal citation and quotation marks 3 omitted). For the foregoing reasons, Blanco-Martinez’s petition for review is DENIED. 4

2021-01-26 21:00:46.43273+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2021/01/26/19-17534.pdf

FILED NOT FOR PUBLICATION JAN 26 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT PAUL S. DANIELS; NANETTE S. No. 19-17534 DILLARD, D.C. No. 3:19-cv-00602-JSC Plaintiffs-Appellants, v. MEMORANDUM* COUNTY OF ALAMEDA; ALAMEDA COUNTY BOARD OF SUPERVISORS; NATE MILEY; SCOTT HAGGERTY; ALAMEDA COUNTY AUDITOR- CONTROLLER AGENCY; PATRICK J. O’CONNELL, Defendants-Appellees, and KEITH CARSON; RICHARD VALLE; WILMA CHAN, County Supervisor; SUSAN MURANISHI; DIANA SOUZA; ROBERT LIEBER, Defendants. Appeal from the United States District Court for the Northern District of California * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.  Jacqueline Scott Corley, Magistrate Judge, Presiding Argued and Submitted January 12, 2021 San Francisco, California Before: BYBEE and R. NELSON, Circuit Judges, and WHALEY,** District Judge. Paul Daniels and Nanette Dillard appeal the district court’s order dismissing their malicious- and retaliatory-prosecution claims, which they brought under 42 U.S.C. § 1983 . The couple argues that the district court erroneously relied on California law—instead of federal law—to impose a presumption that the Alameda County District Attorney had probable cause to charge them in connection with misappropriated federal grant funds. Alternatively, the couple contends that the district court erred in concluding that their complaint failed to adequately connect any particular defendant to the district attorney’s charging decision. The district court had jurisdiction under 28 U.S.C. §§ 1331 , 1343(a)(3), and we have jurisdiction under 28 U.S.C. § 1291 . We review de novo the district court’s dismissal for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Curtis v. Irwin Indus., Inc., 913 F.3d 1146 , 1151 (9th Cir. 2019). We affirm. ** The Honorable Robert H. Whaley, United States District Judge for the Eastern District of Washington, sitting by designation. 2  The district court correctly applied California law to find that probable cause existed to charge Daniels and Dillard criminally. It is well settled that the existence of probable cause dooms a malicious- or retaliatory-prosecution claim. See Hartman v. Moore, 547 U.S. 250 , 265–66 (2006); Lassiter v. City of Bremerton, 556 F.3d 1049 , 1054 (9th Cir. 2009). We have unambiguously held that state law determines whether probable cause existed in a state court action “because we have incorporated the relevant elements of the common law tort of malicious prosecution into our analysis under § 1983.” Awabdy v. City of Adelanto, 368 F.3d 1062 , 1066 (9th Cir. 2004). Nothing about that admonition is dicta, and it clearly binds us here. In “California, as in virtually every other jurisdiction” prima facie evidence of probable cause exists when a defendant is held to answer to criminal charges after a preliminary hearing. Id. at 1067 (citing Holliday v. Holliday, 55 P. 703 , 704 (Cal. 1898)). That prima facie evidence is only rebutted if the prosecution was “induced by fraud, corruption, perjury, fabricated evidence, or other wrongful conduct undertaken in bad faith.” Id. (citations omitted). If the criminal charges result in a conviction, the prima facie presumption becomes conclusive and may only be overcome by a showing that the conviction was obtained by fraud or perjury. Plumley v. Mockett, 79 Cal. Rptr. 3d 822 , 838 (Cal. Ct. App. 2008). Even 3 an appellate reversal of the criminal conviction will not negate probable cause absent one of those factors. See Bealmear v. S. Cal. Edison Co., Ltd., 139 P.2d 20 , 21 (Cal. 1943). Daniels and Dillard have not rebutted either presumption. The couple has not alleged any facts demonstrating that their convictions were the result of fraud or perjury. Nor have they adequately alleged that the district attorney’s decision to charge them was the result of fraud, corruption, perjury, or other bad-faith motives. The complaint alleges wide-spread corruption within the Alameda County government. But the couple does not plausibly allege that the defendants were “actively instrumental in causing the initiation of legal proceedings.” See Awabdy, 368 F.3d at 1067. And where the complaint does allege specific facts related to the district attorney’s decision to charge the couple, the allegations are too attenuated to have been “instrumental” to the charging decision. Id. Alternatively, the couple failed to allege specific facts tying any particular defendant to the district attorney’s charging decision. To state a claim in a § 1983 action, a plaintiff must plead facts showing that each defendant’s “own individual actions . . . violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662 , 676 (2009). The closest the complaint comes to plausibly connecting a particular defendant to the district attorney’s charging decision is that one county board member 4 recommended that the district attorney investigate Dillard for allegedly misappropriating federal grant funds in March 2011. Even assuming that the defendant specifically asked the district attorney to charge the couple, we presume that a district attorney’s charging decision “result[ed] from an independent determination on the part of the prosecutor.” Awabdy, 368 F.3d at 1067. The isolated allegation here does not rebut that presumption and has not “nudged [the couple’s] claims . . . across the line from conceivable to plausible.” Iqbal, 556 U.S. at 680 (citations omitted). AFFIRMED. 5

2020-11-20 19:16:37.23181+00

Corporation of America, a Corporation, Petitioner, v. Commissioner of Internal Revenue, Respondent Corporation of America v. Commissioner Docket No. 109579 United States Tax Court January 15, 1945, Promulgated *253 Decision will be entered under Rule 50. In its income tax return for the year 1930 petitioner deducted from gross income amounts paid for documentary stamp taxes. Its return then showed a large net income. Petitioner was a member of a group of affiliated corporations. A consolidated return was filed for the group showing a large net loss for 1930. Petitioner obtained a judgment that such taxes had been erroneously assessed and in 1939 the amount thereof was refunded to it. The total recoveries secured by all affiliated corporations in subsequent years did not equal their consolidated net loss for 1930. Held, that under section 116, Revenue Act of 1942, relating to the recovery of bad debts, prior taxes, and delinquency amounts, petitioner is entitled to the recovery exclusion contemplated by that statute. George H. Koster, Esq., for the petitioner. T. M. Mather, Esq., for the respondent. Van Fossan, Judge. VAN FOSSAN *567 The respondent determined a deficiency of $ 1,742.01 in the petitioner's income tax and $ 585.22 in its excess profits tax for the year 1939. The petitioner alleges an overpayment of $ 1,041.64 in its tax for that year. The single issue is the taxability of amounts paid in 1930, under protest, for documentary stamp taxes and recovered by suit in 1939. The controversy arises from the fact that the petitioner filed a consolidated return, with affiliated corporations, which disclosed no tax liability of the group, whereas the petitioner's own *255 net income was over $ 1,000,000. A similar issue relating to like amounts paid in the year 1931 was conceded by the respondent to have resulted in no tax liability, since the petitioner received no tax benefit therefrom. FINDINGS OF FACT. The facts were either admitted in the pleadings or stipulated. In so far as they are material to the issue, they are as follows: The petitioner is a corporation, with principal offices in San Francisco, California. Its income tax return for the year 1939 was filed with the collector of internal revenue for the first district of California. In the year 1930 the petitioner paid under protest certain documentary stamp taxes determined by the Commissioner of Internal Revenue to be due from it in the amount of $ 3,745.04. In the year 1931 the petitioner paid under protest certain documentary stamp taxes determined by the Commissioner of Internal Revenue to be due from it in the amount of $ 12,617.79. After the payment of these taxes, the petitioner filed refund claims contending that the assessment and collection of such stamp taxes was erroneous. After the refund claims were rejected by the Commissioner of Internal Revenue, the petitioner filed *256 suit in the United States District Court, and as a result of this litigation, judgment was entered in favor of the petitioner. Thereafter, the sum of $ 15,566.88 representing stamp taxes paid in the years 1930 and 1931 and determined to have been erroneously assessed and collected was refunded to the petitioner in the year 1939. In its income tax return for the year 1939, the petitioner did not include such refund of stamp taxes in its taxable income. The respondent *568 determined that the refund of taxes constituted income taxable in the year 1939 and issued the deficiency notice accordingly. In the year 1930 the petitioner was affiliated with Transamerica Corporation. In that year Transamerica Corporation and its affiliated corporations filed a consolidated income tax return which disclosed a net loss for income tax purposes of $ 1,938,812.43. No tax liability was disclosed on the return on the part of Transamerica Corporation or any of its affiliated companies or from the entire affiliated group. The income and deductions of the petitioner were included with the income and deductions of all of the affiliated companies in arriving at the net loss of $ 1,938,812.43. The*257 deductions of the petitioner for the year 1930 included the stamp taxes paid by the petitioner in that year in the amount of $ 3,745.04. In the year 1931 the petitioner was affiliated with Transamerica Corporation. In that year Transamerica Corporation and its affiliated corporations filed a consolidated income tax return which disclosed a net loss for income tax purposes of $ 33,931,911.99. The tax return for that year showed a situation similar to that existing in 1930, except that the stamp taxes paid in 1931 amounted to $ 12,617.79. The petitioner disclosed an income tax liability on its income and excess profits tax return for the year 1939 in the amount of $ 6,185.10. The tax was duly paid by the petitioner. On May 16, 1941, the respondent assessed a deficiency against the petitioner for income taxes for the year 1939 in the amount of $ 1,041.64. Such deficiency was duly paid by the petitioner on or about May 26, 1941. The petitioner's net income for the year 1930 was $ 1,178,506.23 and was included in the consolidated return of Transamerica Corporation and its affiliates for the year 1930 in computing the consolidated net loss of $ 1,938,812.43 reported in that return. *258 The petitioner's operations for the year 1931 resulted in a net loss in the amount of $ 2,113,513.02. The net loss was included in the consolidated return of Transamerica Corporation and its affiliates for the year 1931 in computing the consolidated net loss of $ 33,931,911.99 reported in that return. The net loss reported on the consolidated return of Transamerica Corporation and its affiliates for the year 1930 exceeded the total recoveries in subsequent years by all of the corporations, included in such consolidated return, of bad debts, taxes, delinquency amounts, and other sums taken as deductions in the consolidated return by an amount in excess of $ 3,745.04. The net loss reported on the consolidated return of Transamerica Corporation and its affiliates for the year 1931 exceeded the total recoveries in subsequent years by all of the corporations, included in such consolidated return, of bad debts, taxes, delinquency amounts, *569 and other sums taken as deductions in the consolidated return by an amount in excess of $ 12,617.79. The net loss of the petitioner for the year 1931 exceeded the total recoveries in subsequent years by the petitioner of bad debts, taxes, delinquency*259 amounts, and other deductions of petitioner taken in the consolidated return of Transamerica Corporation and its affiliates for the year 1931 by an amount in excess of $ 12,617.79. The net losses reported in the consolidated returns of Transamerica Corporation and its affiliates for the years 1930 and 1931 were not carried back or carried forward to any other year or years and were not used to reduce the tax liability of petitioner or any other coporation for any other year or years. The $ 15,566.88 recovered by the petitioner in 1939 represented $ 3,500 of the sum of $ 3,745.04 paid as stamp taxes in 1930, $ 12,039.88 of the sum of $ 12,617.79 paid as stamp taxes in 1931, and $ 27 allowed by the court as costs. The additional income tax for the year 1939 in the amount of $ 1,041.64 paid by the petitioner on May 26, 1941, resulted from the inclusion as taxable income to the petitioner for the year 1939 of $ 9,753.69 of the stamp taxes in the amount of $ 15,566.88 recovered by the petitioner in that year. On May 26, 1941, the petitioner paid interest in the amount of $ 72.67 on the deficiency of $ 1,041.64. OPINION. The issue presented is whether or not the petitioner is entitled *260 to the statutory recovery exclusion under the provisions of section 116 of the Revenue Act of 1942. 1 The specific problem posed is whether the petitioner, which was affiliated with a group of corporations filing a consolidated return in 1930 and which had a *570 net income for that year although the group had a large net loss, obtained a tax benefit from the deduction of amounts paid by it as documentary stamp taxes during that year and recovered by it in 1939. If the petitioner obtained no such tax benefit, the amount of the recovery should be excluded from its income for 1939, under the provisions of section 116, which was made specifically applicable to taxable years beginning after December 31, 1938 (sec. 22 (b) 12 (E) (b), I. R. C.). *261 The respondent's theory is that the petitioner's gross income for 1930 was reduced by the amount of $ 3,500 paid by it as documentary stamp taxes; that after such deduction it still had a net income; that the fact that because of affiliation it paid no tax and had no liability therefor is not material; and that its membership in the affiliated group which filed a consolidated return has no bearing on the issue. The petitioner contends that, although its own return showed on its face a net income after deducting the amount in question, it was liable for no tax on its net income by virtue of its affiliation with a group of corporations filing a consolidated return; that a reduction of income and a reduction of tax are not synonymous; and that a recovery is taxable only if it relates to a reduction of tax liability in the year the deduction was taken. The question may be stated otherwise: Whether "the recovery exclusion" statute is based on the petitioner's net income or its income tax liability. The language of section 22 (b) 12 (D), as amended by the 1942 Act, defines the term "recovery exclusion" as meaning the amount, determined in accordance with regulations prescribed by the Commissioner, *262 of the deductions and credits allowed on account of the bad debt, prior tax, or delinquency amounts "which did not result in a reduction of the taxpayer's tax * * * reduced by the amount excludible in previous taxable years with respect to such debt, tax, or amount under this paragraph." Since there was no amount excludible in previous taxable years, the amount in controversy remains $ 3,500. It is noted that the statute mentions neither "net income" nor "income tax liability." It refers only to the "taxpayer's tax." The pertinent provision of Regulations 111 (sec. 29.22 (b) (12)-1 (a)) defines the recovery exclusion as "an amount equal to the portion of such items which, when deducted or credited for a prior taxable year, did not result in a reduction of any tax of the taxpayer * * *." Section 29.22 (b) (12)-1 (b) (2) headed, "Determination of Recovery Exclusion for Original year for which Items were Deducted or Credited," states: The recovery exclusion for the taxable year for which section 22 (b) (12) items were deducted or credited (that is, the "original taxable year") is the portion *571 of the aggregate amount of such deductions and credits which could be disallowed*263 without causing an increase in any tax of the taxpayer imposed under chapter 1 of the Internal Revenue Code (such as the normal tax, surtax, and victory tax) * * * In the present proceeding the "taxpayer" is the petitioner. We next turn to the legislative history of the statute. On page 45 of Report No. 2333 on H. R. 7378 (Revenue Bill of 1942) to the Seventy-seventh Congress, second session, we find the following: There is at present considerable confusion as to the state of the law regarding the recovery of bad debts or taxes which have been taken as deductions in previous years. The confusion has arisen as to whether the taxation of the amount of the bad debt or tax recovered in the year of such recovery depends upon the tax benefit which the taxpayer derived from the deduction of these items in a prior year. The bill settled this question by excluding from the gross income of the taxpayer in the year of the recovery the amounts recovered to the extent that the debt or tax did not in any prior taxable year reduce his income tax liability. Securities which become worthless and which result in a capital loss are allowed the same treatment as bad debts and taxes. It will be noted*264 that the report refers to the "income tax liability" of the taxpayer. On page 69 of that report, in the following comment on section 114 (later section 116), the same language is used: SECTION 114. RECOVERY OF BAD DEBTS, PRIOR TAXES, AND DELINQUENCY AMOUNTS. This section provides for the exclusion from gross income of amounts otherwise includible in gross income which are attributable to the recovery during the taxable year of a bad debt, prior tax, or delinquency amount, to the extent that such debt, tax, or delinquency amount did not operate to reduce the income-tax liability of the taxpayer for any prior taxable year. The amount of the exclusion from gross income is limited to the amount of the "recovery exclusion" with respect to the debt, tax, or delinquency amount which is recovered. The term "recovery exclusion" is defined as the amount of deductions or credits allowed on account of such bad debt, tax, or delinquency amount, which, in accordance with regulations to be prescribed by the Commissioner with the approval of the Secretary, did not result in a reduction of the taxpayer's income-tax liability for any prior taxable year, reduced by the amount excludible in previous*265 taxable years under this section with respect to such debt or tax. The report of the Senate Committee on Finance made in connection with H. R. 7378 contains almost identical comment. In the above excerpts the phrase "income tax liability" is repeatedly used. In both the Senate and House Committee reports the "tax benefit" theory was recognized and approved. We need not discuss that theory as such. It has been recognized by the Bureau, by this Court, and by Congress. It is sufficient to say that it is now a part of the law. In order to apply the tax benefit theory to the petitioner for the taxable year of 1939 we must revert to and examine its status as a *572 taxpayer in 1930. The petitioner was affiliated with other corporations, and, pursuant to the privilege afforded it by section 141 of the Revenue Act of 1928, it joined in filing a consolidated return for the group. The report of the Senate Committee on Finance to the Seventieth Congress, first session, page 15, reveals the congressional background of section 141. Running through all of the reports is the concept that the petitioner and the other corporations filing a consolidated return in 1930 constituted a single*266 business entity and are considered as a taxable unit, and that the tax liability (and hence the tax) in that year, as contemplated by the recovery exclusion statute, was the tax of the group of which the petitioner was an integral part. By reason of that relationship and of the consequent consolidated net loss, it is our opinion that the petitioner derived no tax benefit from the deductions for "prior taxes" in 1930. The intervention of the consolidated return, itself only one of the many factors making up the complete tax picture, served to make it impossible for the petitioner to derive the tax benefit prerequisite to the tax sought by the respondent for the year 1939. The ultimate question is: Did the taxpayer receive any tax benefit from the deduction of the prior year taxes? The question is not: Would it have enjoyed that benefit if the consolidated return statute had not been in force or if it had chosen not to adopt the consolidated return method of reporting its income? We must take the facts as we find them, not as they might have been. It is explicit in the statute that, in order to be entitled to a recovery exclusion from income, the amount so recovered by the taxpayer*267 must not represent deductions which resulted in a tax benefit or saving to it. Since the taxpayer, this petitioner, in 1930 was subject to no tax liability -- and hence no tax -- the deductions for documentary stamp tax payments afforded it no tax benefit. In the light of the legislative history relating to both the 1942 and 1928 Acts, and of the regulations promulgated thereunder, we have no doubt that in construing section 116 of the 1942 Act the true criterion is the effect which a deduction taken in a prior year had on the petitioner's income tax liability. Since petitioner had no tax liability and consequently derived no benefit from the deduction, no amount arising from the recovery of the taxes so paid is includible in the petitioner's income for the year 1939. The respondent cites and relies upon Central Loan & Investment Co., 39 B. T. A. 981, and Robert A. Haughey, 47 B. T. A. 1. Both of these cases, however, were decided before the enactment of the 1942 Act and, by reason of the change in the law, are not in point. By the *573 provisions of section 116, defining a recovery exclusion, the benefit of the*268 act is made to depend on the fact whether the deduction resulted "in a reduction of taxpayer's tax." This specific definition takes precedence over all prior rulings and holdings as to the character and effect of a deduction urged as a basis for recovery exclusions. The statute is to be applied according to its terms. In the instant case, by reason of its affiliation with other corporations, the taxpayer in 1930 had no tax liability and no tax. Therefore, the deduction "did not result in a reduction of taxpayer's tax" and petitioner is entitled to a recovery exclusion in respect of the stamp taxes refunded in 1939. The amount of stamp taxes recovered in 1939 was $ 15,566.88, of which $ 3,500 represented stamp taxes paid in 1930; $ 12,039.88 similar taxes paid in 1931; and $ 27 allowed as court costs. The $ 12,039.88 is conceded to be excluded from the petitioner's income for the taxable year and obviously the court costs are not an item of income. We hold that the petitioner is also entitled to a recovery exclusion of $ 3,500 received in 1939. Decision will be entered under Rule 50. Footnotes

2020-11-20 19:27:29.251039+00

ELIZABETH S. VALE, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Vale v. Commissioner Docket No. 53041. United States Board of Tax Appeals 30 B.T.A. 1351; 1934 BTA LEXIS 1187; July 31, 1934, Promulgated *1187 1. In 1925 the petitioner sold certain stock and bonds received by her upon a distribution in 1920 or a subsequent year of a portion of the assets of a trust estate in which in 1910 she had acquired a one-sixth residuary interest in the corpus and the income. Such interest was, under the will, charged with its proportional part of certain stated periodical payments to be made during the lives of certain other beneficiaries. Held, that in determining the gain or loss from the sale of the stock and bonds their value on the basic date is to be reduced by a proportional part of the value of the periodical payments applicable to such securities. 2. Evidence held insufficient to establish a loss from the sale of certain securities on December 31, 1925, or that such securities became worthless in 1926. Henry Brach, C.P.A., Alfred Ely, Esq., and N. Norman Mayer, Esq., for the petitioner. Nathan Gammon, Esq., and W. W. Kerr, Esq., for the respondent. TRAMMELL *1351 OPINION. TRAMMELL: This proceeding is for the redetermination of deficiencies in income tax of $6,888.36, $539.72, and $296.73 for 1925, 1926, and 1927, respectively. *1188 The matters put in controversy by the petition as amended are the correctness of the respondent's action (1) in using the March 1, 1913, value in determining the amount of a loss sustained in 1925 on the sale of bonds of Manitou & Pikes Peak Railway Co.; (2) in refusing to allow as deductions for 1925 as losses the amounts of $5,234.50 and $4,478.41 alleged to have been *1352 sustained on the sale of shares of stock and of notes, respectively, of Simmons Sugar, Ltd.; and (3) in determining the cost to petitioner of certain shares of stock in the Simmons Co. sold during 1925, 1926, and 1927. In an amended answer the respondent alleged that in computing the loss on the sale in 1925 of the bonds of Manitou & Pikes Peak Railway Co. he erred in not using the value of such bonds on February 11, 1920, instead of the value on March 1, 1913. He also alleged that in determining the deficiency for 1925 he erred in allowing a capital loss in the amount of $33,847.10 on the sale in that year of 814 shares of stock in the Manitou & Pikes Peak Railway Co., instead of a capital loss in the amount of $3,663 as a result of his using the March 1, 1913, value of such stock instead of its value*1189 on February 11, 1920. He also asked that the deficiency for 1925 be increased accordingly. The petitioner is a resident of Princeton, New Jersey. Her name prior to her marriage to Harry M. Vale, which took place subsequent to January 29, 1903, was Elizabeth C. Simmons. She is a granddaughter of Z. G. Simmons, deceased, of Kenosha, Wisconsin, who died testate on February 11, 1910, leaving a will made January 29, 1903. The will was duly probated after his death. The petitioner was one of the residuary beneficiaries of the trust created by the will. Pertinent provisions of the will are as follows: SECOND: After the payment of my just debts and funeral expenses and the charges and expenses of settling and administering my estate, I hereby give, devise and bequeath all and singular the rest, residue and remainder of my estate of every name, nature and description, and both real and personal and mixed and wherever situate, unto my EXECUTOR and TRUSTEE hereinafter named, IN TRUST, however, upon the following terms and conditions and for the following uses and purposes, viz: 1: To hold, manage, prosecute, conduct and carry on with my estate and property, either all or any*1190 of the lines of business in which I shall or may be engaged at the time of my decease, for a period of ten years from and after my decease, and I hereby authorize and empower my said EXECUTOR and TRUSTEE to hold, manage, prosecute, conduct and carry on the said lines of business as fully in all respects as I could or might do were I living, * * * 2: From the net income and profits of my said estate, business and property, and in case of the failure of income and profits from my said estate, then out of the principal thereof to pay to my sister Esther Stebbins of the City of Kenosha, Wisconsin, the sum of Thirty (30) Dollars per week, payable weekly, for and during the term of the natural life of my said sister Esther Stebbins. And to pay to MISS CHARITY ROBESON, the sister of my deceased wife, the sum of Forty (40) Dollars per month, payable monthly, for and during the term and period of the natural life of the said MISS CHARITYROBESON. And in the event of the division and distribution of my estate as hereinafter provided before the death of my said sister and the said sister of my deceased wife, *1353 to the said sister of my deceased wife shall be a lien and charge*1191 upon each of the shares of my said estate in the hands of my son and daughters and grand-daughter hereinafter named, their heirs or assigns respectively, and shall be paid by them at the times and in the manner hereinbefore provided, in proportion to their respective shares in my estate. 3: To divide, in the discretion of my said EXECUTOR and TRUSTEE, and at such time or times as he may deem proper during said period, the whole or any part of the surplus income and profits, if any, of my said property and estate, after the payment of the said sums to my said sister and to the said sister of my deceased wife, hereinbefore provided for, one-sixth to my grand-daughter ELIZABETH C. SIMMONS and the balance and remainder equally between my son Z. G. SIMMONS, JR., and my daughter MINNIE S. TOWNE and my daughter BELLE S. LANCE, share and share alike, one-third to each. 4: It is my will and desire and I hereby direct that at the end of said period of ten years after my decease, my said EXECUTOR and TRUSTEE shall pay or deliver to my said grand-daughter ELIZABETH C. SIMMONS one-sixth of my estate and property then remaining and shall then divide all and singular the rest, residue and remainder*1192 of my estate and the increment thereof into three equal shares or portions, and that one such share or portion be paid and conveyed to my said son Z. G. SIMMONS, JR. and one such share or portion to my said daughter MINNIE S. TOWNE and one such share or portion to my said daughter BELLE S. LANCE, or their respective heirs, executors or administrators; PROVIDED, HOWEVER, that if at any time before the expiration of said period of ten years my said son Z. G. SIMMONS, JR. and my said daughters MINNIE S. TOWNE and BELLE S. LANCE, or their respective heirs, executors or administrators, shall all agree in writing to divide said estate, that then and in that case my said executor and trustee shall forthwith and as soon as practicable without loss to my said estate, pay or deliver to my said grand-daughter ELIZABETH C. SIMMONS one-sixth of my estate and property then remaining, and shall then divide the rest, residue and remainder of my estate and property into three equal portions and pay and convey one such share or portion to my said son Z. G. SIMMONS, JR.: one such share or portion to my said daughter MINNIE S. TOWNE, and one such share or portion to my said daughter BELLE S. LANCE, or*1193 to their respective heirs or legal representatives; PROVIDED, HOWEVER, that nothing herein contained shall prevent my said son and daughters from continuing said Trust beyond said period of ten years if a majority of them, or the survivors of them, shall elect in writing so to do; but in any event the one-sixth share of my said grand-daughter shall be paid or delivered to her at the end of said period of ten years. In July 1921 petitioner, the daughters, and the son of the decedent, all being beneficiaries under the will of Z. G. Simmons, deceased, hereinafter referred to as the decedent, entered into the following agreement respecting a continuation of the trust for an additional period of 10 years: WHEREAS, the last will and testament of Zalmon G. Simmons, deceased, provides for a trusteeship of his estate for a period of ten (10) years from the date of his death, and further provides that said trust may be continued beyond said period of ten (10) years by the written application of a majority of his heirs, or the survivors of them; and WHEREAS, the said Zalmon G. Simmons, deceased, died at Kenosha, Wisconsin, on the 11th day of February, A.D. 1910: *1354 NOW, THEREFORE, *1194 IT IS HEREBY AGREED that the trusteeship created under said last will and testament be, and the same is hereby, continued for a period of ten (10) years from and after the 11th day of February, A.D. 1920. Stock and Bonds of Manitou & Pikes Peak Railway Co. At the time of his death on February 11, 1910, the decedent was the owner of certain shares of stock and bonds of the Manitou and Pikes Peak Railway Co. On or subsequent to February 11, 1920, the petitioner received as a part of the distribution made out of the trust created by the will of the decedent 814 shares of stock in that company and 70 of its bonds, such bonds having a face or par value of $1,000 each. The value of these securities on the dates indicated was as follows: Feb. 11, 1910March 1, 1913Feb. 11, 1920 814 shares of stock$32,560.00$34,254.10$4,070.00 70 bonds70,000.0065,076.8335,000.00 During 1925 the petitioner sold these securities, receiving $407 for the stock and $16,331.46 for the bonds. In her income tax return for that year she reported the transaction as follows: StockBonds March 1, 1913 value$34,254.10$65,076.83 Selling price407.0016,331.46 Loss33,847.1048,745.37 *1195 In determining the deficiency for 1925 the respondent accepted the loss on the sale as returned by the petitioner, except that he treated it as a capital loss, whereas in her return the petitioner had deducted the amount of the loss from other income. In an amended answer filed in September 1933 the respondent contended that the loss on the sale of the stock and bonds should be computed as follows: StockBonds Value February 11, 1920$4,070.00$35,000.00 Selling price407.0016,331.46 Capital loss3,663.0018,668.54 The petitioner contends that the cost basis for computing the loss on the transaction is the value of the securities at the date of death of the decedent, February 11, 1910, or their value on March 1, 1913, whichever is greater; that the loss on the stock is $33,847.10 as reported *1355 in her return; and that the loss on the bonds is $53,669.54 or an amount $4,924.17 in excess of that reported in her return. This excess results from the use of the value on February 11, 1910, which was greater than the value on March 1, 1913, which was used in the return. In a stipulation of facts filed by the parties at the hearing the position*1196 of the respondent with respect to the computation of the amount of the capital loss on the sale of the stock and bonds is stated to be that advanced in his amended answer filed in September 1933, that is, by using as a cost basis the value of the securities on February 11, 1920. His position is further stated in the stipulation to be that "in any event, the petitioner did not acquire, at the death of Z. G. Simmons on February 11, 1910, anything more than a future beneficial one-sixth interest in the residuary estate of Z. G. Simmons remaining after the payment by the trust created by the will of said Z. G. Simmons of the legacies bequeathed to Esther Stebbins and to Charity Robeson as provided for in paragraph numbered 2 of the aforesaid will, and after the distribution of certain surplus income and profits during the period of said trust to various legatees as provided for in paragraph numbered 3 of the aforesaid will; and that, in determining petitioner's capital gain or capital loss upon the sale of said stock and bonds, the cost basis thereof should be the value of said future beneficial one-sixth interest in the residuary estate of Z. G. Simmons rather than the value of said*1197 stock and bonds of Manitou & Pikes Peak Ry. Co. on February 11, 1910 (or March 1, 1913)." At the hearing counsel for the respondent, after referring to decisions on the point and to a study of the statutes of Wisconsin, stated that the respondent was not now contending that the value on February 11, 1920, as advanced in the amended answer filed in September 1933, was the proper cost basis to be used, but the value of such securities at the time of the decedent's death or on March 1, 1913, subject, however, to the charge upon them resulting from the provisions of the will for the payment of the amounts weekly and monthly to Esther Stebbins and Charity Robeson, respectively. This is the position taken by him in his brief. In view of the foregoing there appears to be no controversy between the parties with respect to whatever rights the petitioner acquired under the will of the decedent having vested in petitioner upon the death of the decedent in 1910. The controversy is as to whether in determining the amount of the loss on the stock and bonds the full value on February 11, 1910, or the full value on March 1, 1913, whichever is greater, is to be used, or whether such value is to*1198 be reduced on account of the payments to be made under the will to the legatees. *1356 In , a grandmother of the taxpayer's wife died testate in 1912, giving her daughter a life interest in half the income from certain securities, with a part of the remainder over to the taxpayer's wife. In 1925 and in 1926 the taxpayer's wife sold stock which had been distributed to her as a remainderman. We there held that the basis for determining gain or loss was the value of the remainderman's interest on the basic date as distinguished from the value of the stock itself on that date. On appeal in , our holding in this respect was held to be erroneous. With all due respect to the court, we think our decision is sound and should be followed by us in cases arising from the jurisdiction of other courts of review, at least until some of such courts have spoken in the matter. In our opinion the fair market value on a particular date of a share of stock or a bond, the possession of which and the complete enjoyment of the income from which are postponed or deferred until some later date*1199 or period, is not as great as a share of the same kind of stock or the same kind of a bond not subject to such restriction. Especially is this true in the instant case, where not only was the possession by the petitioner of the securities in question deferred for a period of 10 years, but such securities were charged proportionately with the payment of certain amounts weekly and monthly for indefinite periods, namely, during the lives of Esther Stebbins and Charity Robeson, respectively. With the exception that Esther Stebbins was about 75 years of age at the time of the death of the decedent, that she died in 1919 or 1920, and that at some time after 1920 the petitioner made provision for taking care of the payments to Charity Robeson, we know nothing as to the value on February 11, 1910, or on any other date of the legacy payments that were to be made to these parties. Nor are we informed as to the portion of the petitioner's proportional part of the value of the legacy payments on February 10, 1911, or on March 1, 1913, that is applicable to the shares of stock and bonds here under consideration. While counsel for the petitioner discusses in his brief the amount of the adjustment*1200 to be made to the value of the stock and bonds on the basic dates on account of the legacies and reaches the conclusion that such adjustment would be less than one percent of the value of the securities on such dates, his conclusion is based in part upon mere assumptions unsupported by the record. Since the rule laid down by us in the Huggett case is applicable here and as the evidence submitted by petitioner is not complete enough to enable us to make any change in the amount of the losses on the sale of the stock and the bonds as reported by the petitioner in her return for 1925 and as accepted by the respondent in making *1357 his determination, the contention of the petitioner as to an increase in the amount of the allowance for a loss on the bonds must be denied. In view of the foregoing as well as the present position of the respondent with respect to the use of the value on February 11, 1920, in determining the amount of the loss on the stock and the bonds his request for an increase in the amount of the deficiency must be denied. Stock and Notes of Simmons Sugar, Ltd. At the time of his death the decedent owned 205 shares of the capital stock of the*1201 Simmons Sugar Co. Subsequent to the death of the decedent one Roberts made a claim against the estate for 25 1/2 shares of the stock under an option that he held. The claim was allowed, leaving 179 1/2 shares of the stock still owned by the estate. The company had been formed in 1908 or 1909 to prosecute the development of a new process, hereinafter referred to as the Simmons process, for the extraction of sugar from sugar cane. Prior to July 1911 it was found that a part of the process would not work as speedily as had been anticipated. However, this was considered only a minor disappointment. In January 1910 one tenth or 100 shares of the outstanding stock of the Simmons Sugar Co. were purchased from the decedent and one McMullen by the United Fruit Co. at $2,500 per share. In 1910, subsequent to the death of the decedent, his son and McMullen purchased four shares of stock in the company at $2,500 per share. These two parties also in 1910 purchased a 90-day option at $250 a share to buy 100 shares of stock in the company at $2,500 a share. This option was extended for some undisclosed period, but was not exercised. About the same time two other options were given for*1202 the purchase of the stock at $2,500 per share. One option was for 30 shares and the other was for 8 shares. The consideration paid for these options, the period for which they extended, and whether they were ever exercised, is not disclosed. About July 1, 1911, Simmons Sugar, Ltd., was formed and thereafter the 179 1/2 shares of stock owned by the estate of the decedent in the Simmons Sugar Co. were exchanged solely for 1,795 shares of stock in the newly formed organization. Thereafter the estate received 449 shares of stock in Simmons Sugar, Ltd., apparently as a bonus with the purchase of certain gold notes, to be referred to immediately. In 1911, in order to obtain funds for development and other purposes, Simmons Sugar, Ltd., offered its gold notes for sale to its stockholders in proportion to their stockholdings. In that year the estate of the decedent purchased between $45,000 and $46,000 face value of the notes for a like amount of cash. Having exhausted its own funds in attempting to develop the Simmons process, Simmons *1358 Sugar, Ltd., in 1912 entered into an agreement with the United Fruit Co., pursuant to which that company furnished such money as was spent*1203 thereafter. Under the agreement the United Fruit Co. was to obtain an interest in the patents of Simmons Sugar, Ltd., because of expenditures which it might make in developing those patents. Efforts to perfect the Simmons process were continued until 1922 when, after the expenditure of approximately $500,000 between 1910 and that year, it was abandoned because it had been found to be unsuccessful. In 1922, when the Simmons process was abandoned, the only other asset that Simmons Sugar, Ltd., had was an application for a patent known as the Trindler application, which was for a process to make decolorization of carbon. The application had been filed on June 11, 1920, in the name of one Trindler and had thereafter on some undisclosed date been assigned to Simmons Sugar, Ltd. On June 18, 1920, one Chandler filed an application for a patent on the same or a similar process. Interference proceedings were begun by Chandler on February 27, 1925. Chandler took testimony respecting his application and proved that he had introduced the process into this country prior to the filing date of Trindler's application. No testimony was taken with respect to the Trindler application. On some*1204 undisclosed date in 1926 the Trindler application was rejected by the Patent Office. Bills of an attorney for his services in prosecuting the Trindler application before the Patent Office were rendered to Simmons Sugar, Ltd., in 1924, 1925, and 1926, but were paid by the United Fruit Co. On November 30, 1925, the petitioner received in distribution from the trust estate as created by the decedent's will and as extended by the agreement in July 1921, 374 shares of stock in Simmons Sugar, Ltd., and $7,616.72 face value of its gold notes. The securities thus distributed to the petitioner represented her one-sixth interest in the total of such securities then held by the estate. While the record does not disclose exactly what amount or amounts the petitioner deducted in her 1925 return as losses on the stock and notes of Simmons Sugar, Ltd., the deficiency notice discloses that the respondent disallowed a loss of $5,234.50 with respect to the shares of stock and $4,478.41 with respect to the notes, such amounts apparently having been taken as deductions for losses sustained on the sale of the securities. The petitioner contends that these securities were sold on December 31, 1925, for*1205 75 cents; that she sustained a deductible loss on account of such sale; that the cost basis for determining the amount of her loss is $74,625 for the 374 shares of stock (1/6 of the total value of 179 1/2 shares of stock in the Simmons Sugar Co. at $2,500 per share, the value urged at July 1, 1911); and that the cost basis *1359 for determining the amount of the loss on the notes in $7,616.72 (the amount paid therefor by the trustee in 1911). The petitioner further contends that, if a deduction is not allowed in 1925 as a loss sustained on the sale of the securities in that year, she is entitled to a deduction in 1926 as a loss sustained as a result of the securities having become worthless in that year. The respondent denies that a bona fide sale of the securities was made in 1925 and further denies that they became worthless in 1926. He contends that the value of the securities when acquired or on March 1, 1913, has not been shown, and, further, that there is no showing that the securities had not become worthless by December 31, 1924. In order to establish the sale of the 374 shares of stock and the $7,616.72 face value of the notes for 75 cents on December 31, 1925, counsel*1206 for the petitioner offered in evidence at the hearing certain written, ex parte, and unsworn statements of deceased persons alleged to have been participants in the transaction. Some of the statements counsel attempted to identify by purely hearsay testimony. Certain other written but inconclusive data, such as canceled checks, sheets from brokers' records, etc., which were dependent for their probative value upon the statements just referred to, were also offered. Objection to the admission of the statements and other data was made by counsel for the respondent and ruling was reserved. The testimony of the petitioner with respect to the transaction was not offered, notwithstanding the fact that it was available, at least by deposition. Upon consideration of the statements and other data offered in evidence by petitioner's counsel we hold that they are not admissible. At most all that they purport to show is that the securities were sold by one Ahrens, who was an agent of the petitioner and who is now deceased, to one Bruck, who is also deceased, for a consideration of 75 cents. They disclose nothing as to whether the purported transaction was one at arm's length, nor do they*1207 disclose anything as to any other matter relating to its genuineness. A purported sale of notes of a face value of $7,616.72 for 75 cents presents a serious question as to its genuineness, but when it is considered that a consideration of only 75 cents was paid for notes of a face value of $7,616.72 and 374 shares of stock, the question of genuineness becomes more serious. Especially is this true when it is considered that the stamp transfer tax payable by the petitioner on a sale of 374 shares of stock was practically 10 times the consideration alleged to have been received for both the notes and the stock. This would be more consistent with the idea of a gift than a genuine sale. Under the foregoing circumstances we think it is particularly significant that the testimony of the petition as to the alleged sale was withheld and the statements and data referred to above were offered. There being no evidence in the record as to a sale of the *1360 stock and the notes having been made in 1925, the petitioner's contention as to the allowance of a loss on a sale thereof must be denied. In support of the contention that the stock and notes became worthless in 1926 the petitioner*1208 relies on the fact that the application for a patent, which was the only asset owned by Simmons Sugar, Ltd., was denied in that year. The record shows that this was the only asset that that company had owned since some time in 1922. Aside from the statement of an attorney, who was handling the application before the Patent Office, that the application was not a frivolous one, we know nothing as to its merits or its value in 1925 or any other year prior to 1926. We know, however, that when interference proceedings were pending in 1925 those in charge of handling the application took no testimony to sustain it as against another who was contesting it while the party who was contesting it prevailed on the ground of the testimony he took. There is nothing in the record to indicate that if a patent had been granted Simmons Sugar, Ltd., it would have had any substantial practical or market value. Aside from the amount of the notes of Simmons Sugar, Ltd., held by the decedent's estate, which had been acquired in 1911, we are not informed as to the amount of that company's notes that were outstanding in 1922 or in any other year. We are not informed as to when they were due, or whether*1209 anything had ever been paid on them either as principal or as interest. We know nothing as to the amount of any other outstanding indebtedness of that company in 1922 or at any other time. So far as the record shows it may well have been in 1922 that the amount of the secured indebtedness of the company was many times the value of the application for a patent and that it was definitely ascertainable in that year that not only the notes of the company but also its stock was worthless. The mere fact that the application for a patent was rejected in 1926 does not standing alone establish that the stock and notes became worthless in that year. Inasmuch as the record fails to furnish a basis for determining in what year the stock and notes became worthless the contention of the petitioner that they became worthless in 1926 must be denied. Being unable to find that there was a sale of the stock and notes in 1925 or that they became worthless in 1926, it becomes unnecessary to determine what their cost basis for determining loss was to the petitioner. Simmons Co. Stock. The parties have stipulated as follows with respect to shares of stock in the Simmons Co. which were sold*1210 by the petitioner in 1925, 1926, and 1927: *1361 The cost of 3,000 shares of common stock of Simmons Company sold by petitioner in 1925 for $109,180.00 is stipulated to be $13.53898 per share or $40,616.94 instead of $42,000.00 as reported in Schedule D of petitioner's income tax return for 1925 and instead of $33,454.47 as determined by the Commissioner * * * and the capital net gain or loss upon the sale of said stock is to be computed on the basis of such stipulated cost. The cost of 1,000 shares of common stock of Simmons Company sold by petitioner in 1926 for $49,875.00 is stipulated to be $13.53898 per share or $13,538.98, instead of $15,220.00 as reported in Schedule D of petitioner's income tax return for 1926 and instead of $11,152.49 as determined by the respondent * * * and the capital net gain or loss upon the sale of said stock is to be computed on the basis of such stipulated cost. The cost of 500 shares of common stock of Simmons Company sold by petitioner in 1927 for $24,405.00 is stipulated to be $13.53898 per share or $6,769.49, instead of $7,910.00 as reported in Schedule D of petitioner's income tax return for 1927 and instead of $5,576.25 as determined*1211 by the Commissioner * * * and the capital net gain or loss upon the sale of said stock is to be computed on the basis of such stipulated cost. In a redetermination of the deficiencies for the respective years effect will be given to the foregoing stipulation of the parties. Reviewed by the Board. Judgment will be entered under Rule 50. BLACK, SEAWELL BLACK, dissenting: I dissent from the conclusion reached by the majority on the first point. I believe we were in error in the rule which we laid down in , and that case should no longer be followed. I think the Court of Appeals of the District of Columbia, in , was right wherein it held in substance that the basis of property acquired by a remainder interest under a will, upon the death of the life tenant, is the value of the property at the date of the death of the testator or where death of the testator occurred prior to March 1, 1913, the value on that date may be used; and that the Board of Tax Appeals was in error in holding that the value of the property on March 1, 1913, should be reduced by*1212 the value of the estate of the life tenant. It may be stated also in support of this view that the Board, in , and in , held that under the provisions of the testator's will the taxpayer received a vested remainder interest and that the date of acquisition of the property sold in the tax years was the date of the death of the testator and that the basis for gain or loss was the value of the property at the time of the testator's death. We said nothing in either case about reducing the value of the property by the life estate which was imposed upon it. Apparently that issue was not raised in either case. We followed the same rule laid *1362 down in . Our decisions in both of these latter cases have been affirmed and in affirming us in , the court cited with approval the opinion of the Court of Appeals of the District of Columbia in *1213 , reversing the Board. So in view of these facts I think the weight of authority is that, in such facts as we have in the instant case, the basis for gain or loss is the value of stock at the time of the testator's death, and if this event occurred prior to March 1, 1913, and the value at the time of the testator's death is greater than the value on March 1, 1913, then the former figure becomes the basis for figuring gain or loss on a sale. Such seems to be the contention of the petitioner in the instant case as to the bonds of the Manitou & Pikes Peak Railway Co. They were of greater value at the time of testator's death than on March 1, 1913. It seems to me that petitioner is right in her contention as to the basis of loss on these bonds and should be sustained on that point. MARQUETTE, MATTHEWS, and LEECH agree with this dissent. SEAWELL, dissenting: I dissent upon the grounds stated in my dissent to , part of which is in agreement with the Circuit Court of Appeals on appeal of that case, *1214 .

2020-12-02 07:14:42.030859+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=16654&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa05%5cOpinion

AFFIRMED and Opinion Filed November 24, 2020 S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01313-CR DARVIS LAKEITH ALLEN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Criminal Court No. 2 Dallas County, Texas Trial Court Cause No. MB1944881-B MEMORANDUM OPINION Before Justices Whitehill, Schenck, and Browning Opinion by Justice Browning Darvis Lakeith Allen appeals his indecent exposure conviction. A jury convicted appellant, and the trial court sentenced him to ninety-three days’ confinement. In a single issue, appellant argues the evidence is insufficient to support his conviction. We affirm the trial court’s judgment. On September 10, 2019, appellant was charged by information with the following offense: on or about the 1st day of September, 2019 in the County of Dallas, State of Texas, did then and there, with the intent to arouse or gratify the sexual desire of DARVIS LAKEITH ALLEN, expose his anus or any part of his genitals, and the defendant was reckless about whether  another was present who would be offended or alarmed by his act, in that the defendant, exposed his anus or any part of his genitals or masturbated in a public place, and ERICA CHUSTZ was present and offended or alarmed by said act of exposure. At appellant’s jury trial in October 2019. Erica Chustz testified she is employed as a physician assistant at Parkland Hospital in the psychiatric emergency department. On September 1, 2019, Chustz was seeing patients, evaluating them, treating some with medications, and determining which patients needed to go to a hospital and which were safe to be discharged. Chustz described the area where she worked as a rectangular room approximately thirty feet wide and forty or fifty feet long containing twenty reclining chairs and “some cubbies on the side.” At one end of the room is a nurse’s station directly facing the rectangular room, and glass windows “go around the whole area of the nurse’s station.” The windows are “about five feet tall from the desk to the ceiling.” Before the underlying offense occurred, Chustz saw appellant in the “seclusion hallway,” which is to the side of the “day room.” Chustz interviewed appellant and offered him medicine, which appellant declined. When Chustz first saw appellant, he was wearing a hospital gown that goes down to the patient’s knees and covers the patient’s whole body. Chustz testified the patients “either wear their own underwear or we can give them underwear,” and Chustz gave appellant underwear. Appellant tapped on the glass to get Chustz’s attention, and she saw appellant was masturbating. Chustz described what happened next: –2–  So basically [appellant] came to the window and got my attention. He was masturbating. At which point, obviously myself as well as a few other nurses, were alarmed by this, so we went into the day area to try and offer him to go to the seclusion hallway where he would just be by himself and we could talk to him privately. He had declined to do that. And then I explained to him that the reason that he needed to do that was because of his behavior as being inappropriate and he was not allowed to just masturbate like that, and that’s when he said my name twice. Chustz testified appellant’s penis was erect, and she felt surprised at first and then embarrassed and “ashamed that that had happened while [she] was at work.” Chustz “felt offended that [appellant] specifically got [Chustz’s] attention to do that” by tapping on the glass and “trying to make eye contact with” Chustz. Chustz testified that she diagnosed appellant with substance induced psychotic disorder which is “a temporary break from reality as a result of ingestion of some sort of substance.” The State played for the jury a surveillance video showing the offense. Chustz testified that, after the offense, appellant “stripped totally naked,” and staff moved appellant into the seclusion hallway where he “received emergent medications through injection” and was placed in a restraint chair. At the conclusion of the evidence, the jury found appellant guilty of indecent exposure, and this appeal followed. In a single issue, appellant argues the evidence is insufficient to support his conviction. In reviewing the sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable –3– doubt. Jackson v. Virginia, 443 U.S. 307 , 313 (1979); Brooks v. State, 323 S.W.3d 893 , 899 (Tex. Crim. App. 2010). We assume the fact finder resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Clayton v. State, 235 S.W.3d 772 , 778 (Tex. Crim. App. 2007). We defer to the trier of fact’s determinations of witness credibility and the weight to be given their testimony. Brooks, 323 S.W.3d at 899 . Circumstantial evidence is as probative as direct evidence in establishing the guilt of the accused. Clayton, 235 S.W.3d at 778 . Circumstantial evidence alone can be sufficient to establish guilt. Id. To obtain a conviction for the offense of indecent exposure, the State had to prove that appellant exposed his genitals with intent to arouse or gratify the sexual desire of any person and he did so while being reckless about whether another was present who would be offended or alarmed by his act. TEX. PENAL CODE ANN. § 21.08(a). By its nature, a culpable mental state must generally be inferred from the circumstances. Romano v. State, No. PD-1289-19, 2020 WL 6301716 , at *3 (Tex. Crim. App. Oct. 28, 2020). We cannot read an accused’s mind, and absent a confession, we must infer his mental state from his acts, words and conduct. Id. Appellant argues the State failed to prove appellant acted with the requisite intent. Specifically, appellant argues the evidence was insufficient to prove beyond a reasonable doubt that appellant acted with the intent to gratify his own sexual desire. Appellant notes that the jury was instructed on voluntary intoxication, and –4– the jury could not excuse appellant’s intent because appellant’s behavior was caused by voluntarily ingesting a substance. However, appellant argues he denied taking any substance when he arrived at the emergency department, and the evidence did not prove that he was positive for any substance when he arrived at Parkland. Moreover, appellant argues his actions “were the result of his mental health diagnosis” of schizophrenia and bipolar disorder that he reported to Chustz, and the voluntary intoxication instruction prevented the jury from considering his mental health diagnosis as evidence of lack of intent. Chustz testified appellant “may have reported a history of schizophrenia,” but she did not know whether he has “a clear diagnosis of schizophrenia.” Chustz testified her notes also showed appellant had a history of PCP use, ad “PCP is known for whatever reason for having the effect of making people strip naked and oftentimes masturbating.” Thus, Chustz diagnosed appellant as having substance induced psychotic disorder. Appellant does not make clear how a prior diagnosis of schizophrenia or bipolar disorder would have constituted evidence of lack of intent under the facts of this case. Here, the evidence showed appellant tapped on the glass to get Chustz’s attention and attempted to make eye contact with her while he masturbated. Appellant’s penis was erect, and he specifically sought out Chustz’s attention and called her by name twice. We conclude this evidence was sufficient to support a finding beyond a reasonable doubt that appellant acted with the intent to gratify his own sexual desire. See TEX. PENAL CODE ANN. § 21.08(a); Romano, –5–  2020 WL 6301716 , at *3; Brooks, 323 S.W.3d at 899 . We overrule appellant’s single issue. We affirm the trial court’s judgment. /John Browning/ JOHN G. BROWNING JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b) 191313F.U05 –6–  S Court of Appeals Fifth District of Texas at Dallas JUDGMENT DARVIS LAKEITH ALLEN, On Appeal from the County Criminal Appellant Court No. 2, Dallas County, Texas Trial Court Cause No. MB1944881- No. 05-19-01313-CR V. B. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Browning. Justices Whitehill and Schenck participating. Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered November 24, 2020 –7–

2020-12-02 08:02:41.406586+00

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D12-01/C:20-1634:J:PerCuriam:aut:T:npDp:N:2621356: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 18, 2020 Decided December 1, 2020 Before DIANE S. SYKES, Chief Judge MICHAEL S. KANNE, Circuit Judge DIANE P. WOOD, Circuit Judge No. 20-1634 WILLIAM A. PANGMAN, Appeal from the United States District Plaintiff-Appellant, Court for the Eastern District of Wisconsin. v. No. 19-C-1615 KEITH L. SELLEN and LORRY ELDIEN, Lynn Adelman, Defendants-Appellees. Judge. ORDER William Pangman sued two employees of Wisconsin’s Office of Lawyer Regulation (“OLR”) under 42 U.S.C. § 1983 for alleged violations of his constitutional rights that occurred during an investigation into whether to reinstate his license to practice law. Shortly after Pangman filed this suit, the Wisconsin Supreme Court denied his petition for reinstatement. The district court dismissed the complaint for failure to state a claim upon which relief could be granted. Because Pangman filed his suit before the state-court judgment was entered, the Rooker-Feldman doctrine does not deprive this court of jurisdiction. But the judge correctly determined that Pangman did not state a claim, so we affirm. No. 20-1634 Page 2 In 1998 the Wisconsin Supreme Court suspended Pangman from practicing law for both administrative and disciplinary reasons. Pangman’s conduct in his postdivorce litigation resulted in a disciplinary suspension starting in April 1998. In re Disciplinary Proceedings Against Pangman, 574 N.W 2d 232 (Wis. 1998). The suspension was for 90 days, but Pangman’s license would remain inactive until he paid the costs of the proceeding. Id. at 241. In June of the same year, the court suspended him for not complying with Wisconsin’s mandatory continuing legal education requirements. His license was suspended again in October for failing to pay bar dues. More than 20 years later, Pangman (who now resides primarily in the Dominican Republic) petitioned for reinstatement from all three suspensions. Pangman’s petition was subject to the rules promulgated by the Wisconsin Supreme Court. When a suspended attorney has not been reinstated after three years, the attorney must file a petition for reinstatement with the Wisconsin Supreme Court. See WIS. S. CT. R. 22.28(1)(c)–(d). The court refers the petition to the OLR to investigate the petitioner’s eligibility for reinstatement and recommend whether the court should grant or deny the petition. See id. R. 10.03(6m)(b); 31.11(1m)(a), (c). The OLR investigation includes whether the petitioner has “good moral character and the fitness to practice law” in Wisconsin. Polk v. Office of Lawyer Regulation, 732 N.W.2d 419 , 421 (Wis. 2007). The OLR must submit a recommendation to the court within 90 days of receiving the petition. See WIS. S. CT. R. 31.11(1m)(c). Several days after receiving Pangman’s petition for reinstatement on July 19, 2019, the OLR opened an investigation. Later that month on the OLR’s recommendation, the Wisconsin Supreme Court reinstated Pangman from his disciplinary suspension after determining that he had been making regular payments toward the costs of the proceeding, but his administrative suspensions remained in effect. Over the next few months, the OLR contacted Pangman several times for further information omitted from his petition. He provided some, but he also argued that the OLR was engaged in “unadopted rule usurpation” and the investigator showed “sentiments of potentially retaliatory resentment” in her questions. Pangman urged the investigator to narrow the scope of the inquiry because it extended beyond the investigative power delegated by the court. On October 16 (the day before the 90-day deadline for submission of the OLR report), the OLR sent a letter to the court (copying Pangman) explaining that because of its back and forth with Pangman about additional information, it could not complete its investigation within the deadline but would submit a recommendation no later than December 1. No. 20-1634 Page 3 Pangman then filed this suit in the Eastern District of Wisconsin on November 4, 2019, against Keith Sellen, the Director of the OLR, and Lorry Eldien, the investigator. Pangman alleged that they deprived him of substantive due process by withholding his law license and of procedural due process by failing to provide proper notice and a hearing or to submit a report within the 90-day time frame. He also asserted that the OLR employees violated the Equal Protection Clause under a class-of-one theory by penalizing Pangman for “conduct for which other attorneys enjoy no such impediment.” Finally, Pangman asserted that the OLR’s role in the attorney reinstatement process is a constitutionally impermissible violation of separation of powers. Pangman sought a court order requiring the OLR to recommend reinstatement. He also requested damages incurred because of the alleged violations, such as loss of potential income during the investigation. The defendants quickly moved to dismiss the complaint. Three weeks after Pangman filed suit, the OLR filed its recommendation against reinstating Pangman with the Wisconsin Supreme Court. The report articulated multiple concerns about his activities over the past 20 years that raised questions about his moral character and fitness to practice law. To give a few examples: The report explained that Pangman had criminal charges filed against him in 2004 for eight counts of failing to pay child support that resulted in a bench warrant when he did not show up for court. It also expressed concern about how Pangman had been supporting himself for two decades; he claimed involvement in different capacities with over 200 companies, but he would not elaborate on the dates of his involvement or what positions he held. The report explained Pangman had unsatisfied tax warrants in several counties in Wisconsin and that he has also not paid United States taxes while residing in the Dominican Republic. Pangman did not file a response, and on February 11, 2020, the Wisconsin Supreme Court denied his petition for reinstatement. The next month the district court dismissed Pangman’s complaint for failure to state a claim. The judge concluded that neither his due-process claim nor his equal- protection claim could survive the defendants’ motion to dismiss. Assuming without deciding that Pangman had a property or liberty interest in the reinstatement of his law license, the judge determined that the OLR did not deprive him of any interest because its role is purely investigatory. The judge also concluded that the equal-protection challenge could not proceed because Pangman did not identify what alleged conduct was discriminatory. He explained that although he would ordinarily grant leave to amend, Pangman’s many filings made it clear he had no viable claim, so amendment would be futile. No. 20-1634 Page 4 On appeal Pangman argues that the judge erred by dismissing his case because he pleaded valid § 1983 claims for due-process violations, an equal-protection class-of- one claim, and a separation-of-powers claim. First, we assure that these claims are not jurisdictionally barred by the Rooker-Feldman doctrine as an attempt to challenge a state-court judgment. See Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). At first glance the doctrine seems applicable; indeed, as the defendants point out, the case is quite like Feldman. Although Pangman’s arguments focus on the OLR’s procedures rather than directly challenging the Wisconsin Supreme Court’s judgment, the primary wrong Pangman wishes to redress is the court’s refusal to reinstate his law license. Attempts to challenge a final judgment masquerading as attempts to challenge procedures are jurisdictionally barred. See Jakupovic v. Curran, 850 F.3d 898 , 903 (7th Cir. 2017); Kelley v. Med-1 Sols., LLC, 548 F.3d 600 , 605 (7th Cir. 2008). Yet Rooker-Feldman does not apply because Pangman filed his suit before the Wisconsin Supreme Court issued its judgment. As the Supreme Court has explained, the Rooker-Feldman doctrine applies only to suits by state-court losers, whose injuries were caused by state-court judgments “rendered before the district court proceedings commenced.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 , 284 (2005). Here, Pangman filed the complaint in federal court on November 4, 2019, before the Wisconsin Supreme Court denied his petition for reinstatement on February 11, 2020, and even before the OLR submitted its recommendation to the court on November 29, 2019. Although Pangman’s complaint seemed to anticipate the court’s adverse ruling, he was not aggrieved by any judgment at the time he sued. And the Supreme Court has made clear that the entry of a state-court judgment after a federal lawsuit has commenced also does not trigger a jurisdictional bar. See id. at 292. Because we have jurisdiction, we turn to Pangman’s challenge to the dismissal of his complaint, a decision we review de novo, accepting his factual allegations as true and drawing reasonable inferences in his favor. Tucker v. City of Chicago, 907 F.3d 487 , 491 (7th Cir. 2018). Pangman first contends that he stated a procedural due-process claim against the defendants. He needed to allege that the defendants deprived him of a valid liberty or property interest without adhering to the basic procedural obligations required by the Due Process Clause. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 , 542 (1985); Black Earth Meat Mkt., LLC v. Village of Black Earth, 834 F.3d 841 , 848–49 (7th Cir. 2016). The district court assumed that Pangman had a property interest in his right to practice law. State law dictates whether a professional license is property for purposes No. 20-1634 Page 5 of federal due process. Babchuk v. Ind. Univ. Health, Inc., 809 F.3d 966 , 969 (7th Cir. 2016). Although the Wisconsin Supreme Court has explained that a candidate not admitted to the bar has no liberty or property interest in employment in the legal profession, see In re Martin, 510 N.W.2d 687 , 692–93 (Wis. 1994), it is not clear whether this applies to the reinstatement of a law license. Regardless, even if Pangman had a protected interest in reinstatement, the OLR defendants did not—and could not—deprive him of that interest. For liability to exist under § 1983, an individual must have “personal involvement in the alleged constitutional deprivation.” Colbert v. City of Chicago, 851 F.3d 649 , 657 (7th Cir. 2017) (quoting Minix v. Canarecci, 597 F.3d 824 , 833 (7th Cir. 2010)). Pangman asserts that the OLR employees are personally involved because they failed to conduct a timely investigation, would not provide him with notice or a hearing, and “refus[ed] to lift the suspension.” But the OLR investigates reinstatement petitions and provides a recommendation to the Wisconsin Supreme Court. See WIS. S. CT. R. 31.11(1m)(c). The employees of the OLR have no power to grant or deny Pangman’s petition. See id. R. 21.09(1), 31.11(1m)(a). The OLR’s failure to submit the report within 90 days as required by the Wisconsin Supreme Court also did not violate Pangman’s federal due- process rights. The Constitution “does not enforce compliance with state procedural rules.” Manley v. Law, 889 F.3d 885 , 893 (7th Cir. 2018). Moreover, Pangman himself slowed the process: the OLR explained that it would be several weeks late submitting the report because of difficulty communicating with and gathering additional information from Pangman. Finally, from the complaint it is clear that Pangman received the cornerstones of due process, including notice of the proceedings (he initiated them) and an opportunity to be heard. See Mathews v. Eldridge, 424 U.S. 319 , 333 (1976). But he failed to engage fully with the OLR investigation and did not respond to its filing with the Wisconsin Supreme Court before the court denied his petition. Pangman asserts that the defendants also violated his substantive due-process right (a theory the district court did not address), but this claim cannot proceed either. Substantive due process is very limited in scope and protects against “only the most egregious and outrageous government action.” Campos v. County of Cook, 932 F.3d 972 , 975 (7th Cir. 2019). To state a substantive due-process claim, a plaintiff must allege that the government abused its power in a manner that is “so arbitrary and oppressive that it shocks the conscience.” Catinella v. County of Cook, 881 F.3d 514 , 519 (7th Cir. 2018). Nothing in Pangman’s complaint about the actions of the OLR comes remotely close to shocking the conscience. Rather, the employees requested additional relevant No. 20-1634 Page 6 information and then delivered a report and recommendation to the Wisconsin Supreme Court, as state law requires. See WIS. S. CT. R. 10.03(6m)(b); 31.11(1m)(a), (c). Pangman also argues that he stated an equal-protection claim because the OLR discriminated against him as a “class of one.” To survive a motion to dismiss on a class-of-one claim, a plaintiff must allege that he was “intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” D.B. ex rel. Kurtis B. v. Kopp, 725 F.3d 681 , 685–86 (7th Cir. 2013) (quoting Village of Willowbrook v. Olech, 528 U.S. 562 , 564 (2000)). Here, even if the OLR did treat Pangman differently than similarly situated individuals by asking more follow-up questions, his own complaint reveals the rational basis for doing so. See Miller v. City of Monona, 784 F.3d 1113 , 1121 (7th Cir. 2015). Pangman explained that he had been unable to provide documentation about his financial and employment history that other individuals routinely provide to the OLR. The Wisconsin Supreme Court has explained that employment during a suspension is relevant to investigating a petition for reinstatement, see In re Disciplinary Proceedings against Riley, 882 N.W.2d 820 , 832–33 (Wis. 2016), so the OLR had a rational basis for asking Pangman for more information. Pangman also asserts he stated a claim for a violation of “separation of powers.” But the federal doctrine of separation of powers is irrelevant. And the “Constitution does not prescribe any particular separation of powers, or other internal structure, of state government.” Pittman v. Chi. Bd. of Educ., 64 F.3d 1098 , 1102 (7th Cir. 1995). Finally, Pangman asserts that the district court erred by not granting his motion for reinstatement to the bar of the Eastern District of Wisconsin. But the judge properly refrained from acting on this request. As the judge noted at the hearing, federal bar admission is an administrative process determined by the Clerk of Court, not a judge. E.D. WIS. LOCAL R. 83(c)(2). The Eastern District of Wisconsin imposes reciprocal discipline on a lawyer who is suspended from practice by the highest court in a state where the lawyer is licensed, see id., but that, too, has nothing to do with this case, which involves admission to the Wisconsin bar, see WIS. S. CT. R. 21.01-02.1 AFFIRMED 1 The attorney admission roll of the Eastern District of Wisconsin reflects that Pangman is suspended, see https://ecf.wied.uscourts.gov/cgi-bin/BarLookup.pl (last visited Nov. 18, 2020), but he has not informed us whether he ever filed a request for reinstatement. Given the reciprocal discipline rule, it likely would not matter.

2020-12-02 08:03:15.941832+00

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D12-01/C:20-1119:J:PerCuriam:aut:T:npDp:N:2621285: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 Submitted November 18, 2020 Decided December 1, 2020 Before DIANE S. SYKES, Chief Judge MICHAEL S. KANNE, Circuit Judge DIANE P. WOOD, Circuit Judge No. 20-1119 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Northern District of Illinois, Eastern Division. v. No. 1:17-CR-00299(1) TIMOTHY DORSEY, John J. Tharp, Jr., Defendant-Appellant. Judge. ORDER Timothy Dorsey operated a sex-trafficking ring in which his workers, adult men, would perform sexual acts on customers during erotic massages. He pleaded guilty to two counts of knowingly transporting individuals across state lines to engage in prostitution in violation of 18 U.S.C. § 2421. The judge sentenced him to 120 months in prison. Dorsey appeals and argues that his sentence, which exceeded the high end of the Guidelines range by 79 months, is substantively unreasonable. The judge appropriately found the Sentencing Guidelines “grossly inadequate” to represent the objectives of 18 U.S.C. § 3553(a) and reasonably justified the above-Guidelines sentence, so we affirm. No. 20-1119 Page 2 From 2011 to 2015, Timothy Dorsey ran a Chicago-based sex-trafficking operation that sent his workers across the country. Dorsey sold the workers for sex by posting online advertisements that offered sensual and erotic massages. Dorsey booked the appointments, informed customers what commercial sex acts his workers would provide, set the prices customers would pay, and coordinated transportation and lodging for his workers. He also collected half the proceeds. According to his workers, Dorsey physically and emotionally abused them and threatened to kill anyone who performed sex work outside the operation. In 2015 Dorsey pleaded guilty to a state pimping charge in Georgia and was incarcerated for almost a year. While in custody he attempted to run his operation by sending postcards to his workers with instructions on how to continue meeting with customers. After his release he was rearrested in Georgia in late 2016 on charges (later dismissed) of pimping and trafficking a female worker. In May 2017 Dorsey was indicted by a grand jury in the Northern District of Illinois on five counts of transporting individuals across state lines to engage in prostitution in violation of 18 U.S.C. § 2421. Several months later he was indicted in the Middle District of Georgia under the same statute on another count. This indictment was transferred to the Northern District of Illinois. See FED R. CRIM. P. 20. Dorsey pleaded guilty to two counts of transporting individuals across state lines to engage in prostitution. The presentence report recommended a Guidelines range of 24 to 30 months in prison. At sentencing the government pushed for an above-Guidelines sentence of 8 to 10 years in prison to reflect, among other things, Dorsey’s role in the murder of Philip Scheau, one of his former workers. The government presented evidence that Scheau was shot and killed at Dorsey’s direction by one of his workers in a motel parking lot in February 2015—several weeks after Scheau stopped working for Dorsey. The government played excerpts from the shooter’s videorecorded confession to police officers in which he explained that he killed Scheau at Dorsey’s order after Scheau left the operation and started posting his own advertisements for sex work. To corroborate the shooter’s confession, the government introduced cell-phone and credit-card records showing that Dorsey had rented a car and driven from Texas to Illinois (where Scheau was killed) with the shooter around the time of the murder. The government also presented surveillance video of a car identical to Dorsey’s rental with the shooter being dropped off at the motel shortly before the murder. No. 20-1119 Page 3 After calculating the Guidelines range at 33 to 41 months, the judge deemed the range “grossly inadequate” to reflect the sentencing objectives of 18 U.S.C. § 3553(a) and sentenced him to 120 months. An above-Guidelines sentence was justified, he explained, because of Dorsey’s long history of running his operation using manipulative and abusive tactics toward his victims, the actual danger that he presented to the public, and the risk for recidivism considering that he had continued to facilitate sex trafficking both during and after his Georgia incarceration. In addition, the judge found by a preponderance of the evidence that Dorsey initiated, planned, and directed Scheau’s murder. He acknowledged Dorsey’s mitigation arguments about his difficult childhood and older age (52) but concluded that none of the arguments warranted a lower sentence. The judge also determined that despite Dorsey’s admissions in the plea agreement, he had not fully accepted responsibility for his conduct based on ambivalent statements he made to the probation officer. (He told the probation officer that his business provided “legal companionship to lonely people” and that he turned a “blind eye” to his employees who performed sexual acts.) On appeal Dorsey challenges his above-Guidelines sentence on the ground that the judge focused too narrowly on his role in Scheau’s murder. Rather than address the nature and circumstances surrounding the interstate trafficking offenses for which he pleaded guilty, he asserts that the judge “focused entirely” on his involvement with Scheau’s murder—conduct for which he had not been indicted. Further, his case differs from other cases in which courts apply above-Guidelines sentences for uncharged violent conduct because no violence had been traced to him; the government never argued that he pulled the trigger and killed Scheau. Dorsey misapprehends the basis of the court’s sentence. As the judge explained, “[t]his is not a sentence for murdering Phillip Scheau. This is the sentence you deserve for committing the prostitution crimes that you’ve been charged with and convicted [of].” The judge concluded that the Guidelines range did not encapsulate the full scope of Dorsey’s conduct and his involvement in violent acts and that an above-Guidelines sentence was warranted. See United States v. Gill, 824 F.3d 653 , 665–66 (7th Cir. 2016). Primary in the judge’s determination was the abuse and manipulation that Dorsey imposed in his day-to-day operation of his business. The judge highlighted the nature and circumstances of the charged offenses, particularly Dorsey’s long and undisputed history of running his sex-trafficking operation, his manipulating and threatening tactics toward his victims, the many people involved, and his efforts to conceal the operation and obstruct law enforcement. Although Dorsey did not have an extensive criminal record, the judge pointed out that the year he spent in prison for a pimping No. 20-1119 Page 4 charge did not deter him from sex trafficking. Further, Dorsey’s aloof comments to the probation officer belied acceptance of responsibility for the charged offenses. And while the judge did not “focus entirely” on Dorsey’s role in Scheau’s murder, he did consider it an aggravating factor. This is permissible. Courts may consider relevant, uncharged conduct when imposing a sentence so long as the conduct is proved by a preponderance of the evidence. United States v. Holton, 873 F.3d 589 , 591– 92 (7th Cir. 2017). He had little difficulty concluding that the government had met this burden in the case of Scheau’s murder and that a higher sentence was needed to protect the public. Lastly, Dorsey’s denial that he committed “actual violence” is specious; whether he pulled the trigger does not undermine the judge’s determination that he orchestrated the murder and that it had been carried out at his command. Dorsey also asserts that the judge erred by not giving more weight to his arguments in mitigation, primarily concerning his difficult childhood. He notes that his mother died when he was a toddler, his father did not play an active role in his life, he had a difficult time in foster care, and he was sexually abused by an adult at his work when he was 14. The judge considered these arguments but reasonably concluded that a lesser sentence was not warranted. As a preliminary matter, Dorsey likely waived any procedural challenge by not responding to the judge’s inquiry about whether he had sufficiently addressed his principal arguments in mitigation. See United States v. Donelli, 747 F.3d 936 , 940–41 (7th Cir. 2014); United States v. Garcia-Segura, 717 F.3d 566 , 568–69 (7th Cir. 2013). In any event, the judge reasonably rejected his arguments in mitigation. As the judge explained, despite Dorsey’s background, he “clearly has a lot going for him”—he graduated high school, became a sergeant in the military, and has no documented substance-abuse or mental-health issues—yet he still spent years operating and profiting from his sex-trafficking ring. AFFIRMED

2020-12-02 08:03:32.873844+00

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D12-01/C:20-1035:J:PerCuriam:aut:T:npDp:N:2621398: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 18, 2020 Decided December 1, 2020 Before DIANE S. SYKES, Chief Judge MICHAEL S. KANNE, Circuit Judge DIANE P. WOOD, Circuit Judge No. 20-1035 KEVIN THOMAS LACHER, Appeal from the United States District Plaintiff-Appellant, Court for the Eastern District of Wisconsin. v. No. 18-CV-941 ANDREW M. SAUL, Nancy Joseph, Commissioner of Social Security, Magistrate Judge. Defendant-Appellee. ORDER Kevin Lacher, a 55-year-old man suffering from sustained back pain and limited mobility, challenges the denial of his application for disability insurance benefits. An administrative law judge found that Lacher had the residual functional capacity to perform sedentary work with some limitations. On appeal, Lacher contends that the ALJ erred by (1) not assigning enough weight to his treating physician’s opinion and (2) discounting his subjective complaints. Because substantial evidence supports the ALJ’s determination that Lacher was not disabled, we affirm. No. 20-1035 Page 2 Lacher filed for disability benefits in early 2015, asserting that his pathological back fractures, degenerative lumbar-spine disc disease, left-side joint dysfunction, and high blood pressure prevented him from working. He traced these conditions back to 2008, when he fractured his spine lifting a window for a home-improvement company. Before that, Lacher had served in the Air Force as a heavy-equipment mechanic. A surgery that Lacher underwent in 2010 to repair a torn disk appeared to alleviate his symptoms. He stayed out of the workforce until late 2013, when he began working for a laptop-recycling company. But in January 2014, Lacher complained of back pain to his primary-care physician, Dr. Paul Robey, who subsequently discovered a compression fracture. Lacher underwent another back surgery in March. After this surgery, Lacher still experienced back pain. In October, an orthopedic specialist diagnosed him with a second compression fracture in his spine. Another surgery was scheduled but then cancelled because the fracture was considered too small. Lacher soon began therapy with a chiropractor, and his condition improved to the point where he could shovel snow. An MRI and bone scan from this time showed that the fracture had healed. At a post-therapy checkup in mid-2015, the chiropractor noted that Lacher had minimal to mild muscle spasms and restricted mobility in his problem areas but no longer had significant flare-ups of pain. Based on his back pain and restricted mobility, Lacher applied for disability insurance benefits. He claimed a disability onset date of February 13, 2014—the same day he was laid off from his job dismantling laptops for recycling. Lacher stated that he could not sit or stand for more than 20 minutes, walk more than a block without a cane, lift more than 20 pounds, or bend to pick up something off the floor. He also reported waking up every two hours from pain, for which he was prescribed Valium. In support of Lacher’s application, Dr. Robey submitted a “Treating Source Statement” opining on Lacher’s ability to perform work-related activities. On one form, he checked a box indicating that Lacher likely would be off task at work for over 25% of the time and absent more than 4 days a month. Dr. Robey also noted that Lacher had limitations such as lifting and carrying objects weighing at least 10 pounds (which he could do only occasionally); lifting 20 pounds (rarely); stooping, balancing, kneeling, and crouching (only occasionally); and never climbing stairs, ramps, ladders, or scaffolds. The Social Security Administration denied Lacher’s application initially and on reconsideration, and an ALJ held a hearing on his disability claim. At the hearing, Lacher emphasized that, as of 2015, he could not bend down (such as to put on his socks or pick up after the dog) or sit for more than 30 to 45 minutes without taking a break. No. 20-1035 Page 3 He added that he could walk only about 50 yards before needing to stop, and that he used a cane. Lacher also described days on which the burning back pain was so severe that he could do nothing but find a comfortable position and lie down. The ALJ then questioned a vocational expert about the jobs available to someone with Lacher’s limitations. The vocational expert noted at the outset that Lacher had worked in the past as a laptop recycler—medium, unskilled work—but he actually had been performing the work at only a sedentary level. The expert went on to testify that a person with Lacher’s limited mobility could not perform his past recycling work if he needed to take a break every thirty minutes, but he could do the job as Lacher had actually performed it in the past. Applying the agency’s familiar five-step analysis, see 20 C.F.R. § 404.1520(a), the ALJ determined that Lacher was not disabled at any time between February 2014 (the alleged onset date) and September 2015 (the date last insured). The ALJ found that Lacher had not engaged in substantial gainful activity since the alleged onset date (step one); that he had the severe impairment of a history of compression fractures (step two); that he did not have an impairment or combination of impairments that met or equaled a listed impairment (step three); that he had the residual functional capacity to perform a range of sedentary work as defined in 20 C.F.R. § 404.1567(a) (step four); and that he could perform his past recycling work (also step four). In reaching her conclusion, the ALJ explained that she found Lacher’s testimony about the intensity, persistence, and limiting effects of his symptoms “not entirely consistent” with the medical evidence—evidence that he had improved mobility post- therapy and that his fractures were healing. The ALJ gave some weight to Dr. Robey’s opinion, noting that portions of it were consistent with evidence that Lacher had tenderness and a limited range of motion in his back, but other portions were inconsistent with evidence showing normal gait, normal muscle strength, and the absence of any limping. The Appeals Council denied review, making the ALJ’s decision final. See 20 C.F.R. § 404.981. The district court upheld the ALJ’s decision as supported by substantial evidence. On appeal, Lacher argues—with respect to the residual functional capacity finding—that the ALJ erred by giving only “some weight” to the opinion of his treating physician Dr. Robey. For applications like Lacher’s that were filed before 2017, a treating source’s opinion is entitled to controlling weight if it is supported by sound medical evidence and a consistent record. 20 C.F.R. § 404.1527(c)(2); Hall v. Berryhill, 906 F.3d 640 , 643 (7th Cir. 2018). When an ALJ does not give controlling weight to a No. 20-1035 Page 4 treating source’s opinion, that opinion should be weighed based on the nature and extent of the treatment, the treating source’s area of specialty, and the degree to which the opinion is consistent with the record and supported by evidence. See 20 C.F.R. § 404.1527(c)(2). Lacher disputes the determination that Dr. Robey’s “Treating Source Statement” was inconsistent with the medical record, emphasizing the doctor’s February 2015 comment that his back pain likely would not improve and that he likely would have more compression fractures over time. Substantial evidence supports the ALJ’s decision to give only “some weight” to Dr. Robey’s opinion. The ALJ adequately explained why she found that Dr. Robey’s treating-physician form painted a more severe picture of Lacher’s limitations than suggested by the objective medical evidence. She properly assessed the limitations in Dr. Robey’s form, noting inconsistencies between the severe limitations identified by the doctor and physical examinations showing that Lacher had normal gait, muscle strength, and range of motion in his extremities. As the ALJ also pointed out, Dr. Robey attributed Lacher’s limitations to his diagnosed compression fractures without explaining how the fractures restricted his mobility so severely. Although the ALJ could have substantiated her analysis better—for instance, by specifying the portions of Dr. Robey’s form she discredited—she did acknowledge Dr. Robey’s familiarity with Lacher’s condition, directly adopted some of his proposed limitations, and otherwise applied the correct legal standards. Lacher next faults the ALJ for discounting his subjective complaints as “not entirely consistent” with the evidence—a formulation akin to one (“not entirely credible”) that we have identified as “meaningless boilerplate.“ Parker v. Astrue, 597 F.3d 920 , 921–22 (7th Cir. 2010). Specifically, he argues that the ALJ ignored his April 2015 statement that he “cannot sit, stand more than 20 minutes.” But the phrase “not entirely credible” (or “not entirely consistent”) is meaningless only when the ALJ gives no legitimate reasons for discrediting the claimant’s testimony. Martinez v. Astrue, 630 F.3d 693 , 696 (7th Cir. 2011). The ALJ’s rationale here was thin, but it was adequate to reflect her conclusion that the objective medical evidence and Lacher’s daily activities did not corroborate his subjective symptoms. The ALJ acknowledged Lacher’s physical limitations caused by the compression fractures, but pointed to his “normal reflexes, sensation, muscle strength, and gait”; his “reported improvement with chiropractic care”; and his “increased ability in performing some activities of daily living”—including shoveling snow with less pain. True, the ALJ said nothing about Lacher’s self-reported inability to sit for prolonged periods, but Lacher has not identified any objective medical evidence in the record to corroborate such a generalized subjective complaint. Given how little Lacher said about No. 20-1035 Page 5 any limitations he had while sitting, the ALJ cannot be faulted for not explicitly addressing this complaint. See Murphy v. Colvin, 759 F.3d 811 , 817 (7th Cir. 2014) (internal citations omitted). AFFIRMED

2021-01-26 21:00:46.872971+00

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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JESSE ALLRED, No. 19-16770 Plaintiff-Appellant, D.C. No. 1:16-cv-01571-LJO-SAB v. MEMORANDUM* CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION; et al., Defendants, and DUROY; et al., Defendants-Appellees. Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding Submitted January 20, 2021** Before: McKEOWN, CALLAHAN, and BRESS, 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).  California state prisoner Jesse Allred appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging deliberate indifference to his serious medical needs. We have jurisdiction under 28 U.S.C. § 1291 . We review de novo. Toguchi v. Chung, 391 F.3d 1051 , 1056 (9th Cir. 2004). We affirm. The district court properly granted summary judgment because Allred failed to raise a genuine dispute of material fact as to whether defendants were deliberately indifferent to his wrist fracture and whether he experienced significant harm as a result of any delay in treatment. See id. at 1060-61 (a prison official is deliberately indifferent only if he or she knows of and disregards an excessive risk to inmate health; medical malpractice, negligence or difference of opinion concerning the course of treatment does not amount to deliberate indifference); Hallett v. Morgan, 296 F.3d 732 , 745 (9th Cir. 2002) (prisoner must show delay led to significant harm). The district court did not abuse its discretion by denying Allred’s discovery motion because Allred failed to demonstrate that the denial of discovery resulted in actual and substantial prejudice to him. See Laub v. U.S. Dep’t of Interior, 342 F.3d 1080 , 1084, 1093 (9th Cir. 2003) (setting forth standard of review and explaining that a district court’s “decision to deny discovery will not be disturbed except upon the clearest showing that the denial of discovery result[ed] in actual 2 19-16770 and substantial prejudice to the complaining litigant” (citation and internal quotation marks omitted)). We reject as without merit Allred’s contention that the district court applied an incorrect legal standard in granting summary judgment for the defendants. Allred’s motion to file an oversized brief (Docket Entry No. 21) is granted. The Clerk is instructed to file the reply brief submitted at Docket Entry No. 22. AFFIRMED. 3 19-16770

2020-12-02 11:09:03.905506+00

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Third District Court of Appeal State of Florida Opinion filed December 2, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D20-0197 Lower Tribunal No. 19-18705 ________________ Zion Williamson, Appellant, vs. Prime Sports Marketing, LLC, et al., Appellees. An Appeal from a non-final order from the Circuit Court for Miami-Dade County, David C. Miller, Judge. Weil, Gotshal & Manges LLP, and Edward Soto, Corey Berman, and Pravin Patel, and Jeffrey S. Klein, Gregory Silbert, and Robert B. Niles-Weed (New York, NY), and Zachary D. Tripp (Washington, DC), for appellant. Eaton & Wolk, P.L., and Douglas F. Eaton, for appellees. Before LOGUE, SCALES, and LINDSEY, JJ. LINDSEY, J.  Appellant Zion Williamson (Defendant below) appeals from a non-final order denying his motion to dismiss for lack of personal jurisdiction. 1 Because Appellee Prime Sports Marketing, LLC (Plaintiff below) failed to allege sufficient jurisdictional facts in its Complaint to bring its action within the ambit of Florida’s long-arm statute, we reverse the denial of Williamson’s motion to dismiss for lack of personal jurisdiction and remand without prejudice to amend. I. BACKGROUND Zion Williamson was a successful student athlete at Duke University during the 2018-19 basketball season. In early 2019, Gina Ford, the owner of Prime Sports, went to North Carolina on multiple occasions to discuss the possibility of Prime Sports becoming Williamson’s agent for branding and marketing. Williamson declared for the NBA Draft on April 15, 2019.2 Five days later, Williamson entered into a Marketing and Branding Agreement (the “Agreement”) with Prime Sports at his home in North Carolina. The parties’ contractual relationship was short-lived. On May 31, 2019, Williamson formally terminated his relationship with Prime Sports. Creative Artist Agency, LLC (“CAA”), Williamson’s NBA agent, replaced Prime Sports as 1 Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i) authorizes appellate review of non-final orders that determine “the jurisdiction of the person[.]” 2 As expected, Williamson was the No. 1 draft pick. 2 Williamson’s exclusive marketing agent. In June 2019, Williamson sued Prime Sports in federal court in North Carolina, seeking, among other relief, a declaration that the Agreement is unenforceable under North Carolina’s Uniform Athlete Agent Act. Despite the pending lawsuit in North Carolina, Prime Sports brought this breach of contract and tort action against Williamson in Florida. 3 Williamson moved to dismiss for lack of personal jurisdiction, arguing that the Complaint failed to allege sufficient jurisdictional facts to bring the action within the ambit of Florida’s long-arm statute or satisfy the constitutional minimum contacts requirement. In support of his motion, Williamson submitted an affidavit reiterating that he is not a Florida resident and that “[n]one of [his] interactions with [Prime Sports] occurred in or related to Florida.” Ford submitted an Affidavit in opposition to Williamson’s motion, which emphasized Prime Sports’ connections to Florida and Williamson’s alleged communications with Prime Sports. At the hearing on Williamson’s motion, Prime Sports primarily focused on its undisputed contacts with Florida and Williamson’s communications with Prime Sports. Williamson argued that the focus should be on his contacts with Florida and 3 Prime Sports also sued CAA and other individuals associated with CCA, but Williamson is the only defendant who is a party to this appeal. 3 not Prime Sports’ contacts. The trial court ultimately denied Williamson’s motion to dismiss, and Williamson timely appealed. II. ANALYSIS We review the trial court’s order denying Williamson’s motion to dismiss for lack of jurisdiction de novo. See Phelan v. Lawhon, 229 So. 3d 853 , 857 (Fla. 3d DCA 2017) (citing Wendt v. Horowitz, 822 So. 2d 1252 , 1256 (Fla. 2002)). The issue in this case is governed by the two-pronged jurisdictional analysis set forth in Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989). The first step in this analysis, the statutory prong, is to determine whether the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of Florida’s long-arm statute, section 48.193, Florida Statutes (2020). Id. at 502. If so, the next inquiry, the constitutional prong, “is whether sufficient ‘minimum contacts’ are demonstrated to satisfy due process requirements.” Id. (quoting Unger v. Publisher Entry Servs., Inc., 513 So. 2d 674 , 675 (Fla. 5th DCA 1987)). As this Court explained in Fincantieri-Cantieri Navali Italiani S.P.A. v. Yuzwa, 241 So. 3d 938 , 941–42 (Fla. 3d DCA 2018): A key component of the Venetian Salami analysis is its allocation of the burden of proof. Initially, the plaintiff bears the burden of pleading sufficient jurisdictional facts to fall within the long-arm statute. [Venetian Salami, 554 So. 2d at 502 ]. “If the allegations in the complaint sufficiently establish long-arm jurisdiction, then the burden shifts to the defendant to contest the jurisdictional allegations in the complaint, or to claim that the federal 4  minimum contacts requirement is not met, by way of affidavit or other similar sworn proof.” Belz Investco Ltd. P’ship v. Groupo Immobiliano Cababie, S.A., 721 So. 2d 787 , 789 (Fla. 3d DCA 1998). “If properly contested, the burden then returns to the plaintiff to refute the evidence submitted by the defendant, also by affidavit or similar sworn proof.” Id. If the parties’ sworn proof is in conflict, “the trial court must conduct a limited evidentiary hearing to resolve the factual dispute.” Id. (Citations and footnotes omitted). Though lengthy, Prime Sports’ Complaint contains few jurisdictional allegations. According to the Complaint, Williamson is a resident of South Carolina. There are no allegations that directly state the trial court has jurisdiction over Williamson. The only explicit jurisdictional allegation applicable to Williamson relies on the Agreement’s choice of law provision: “[t]his Court further has jurisdiction over the within matter as the contract given rise to the dispute herein by its terms, conditions which were agreed upon by all parties to the contract herein, is to be governed, interpreted and construed by the applicable laws of the State of Florida.” It is undisputed on appeal that a choice of law provision alone is insufficient to subject a nonresident defendant to personal jurisdiction. 4 4 Section 685.102(1), Florida Statutes (2020), authorizes a party, “to the extent permitted under the United States Constitution, [to] maintain in this state an action or proceeding against any person . . . located outside this state, if the action or proceeding arises out of or relates to any contract . . . for which a choice of the law of this state . . . has been made . . . and which contains a provision by which such person . . . located outside this state agrees to submit to the jurisdiction of the courts of this state.” (Emphasis added). 5  Florida’s long-arm statute, section 48.193, lists specific acts that could subject a nonresident defendant to personal jurisdiction in Florida. 5 Prime Sports argues there are sufficient allegations in the Complaint to bring the action within the following three provisions of Florida’s long-arm statute: 1. “Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.” § 48.193(1)(a)(7), Fla. Stat. 2. “Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.” § 48.193(1)(a)(1), Fla. Stat. 3. “Committing a tortious act within this state.” § 48.193(1)(a)(2), Fla. Stat. We address Prime Sports’ arguments with respect to each of these acts in turn. 1. Breach of Contract Allegations Prime Sports argues that its allegation that Williamson breached the express terms of the Agreement by failing to pay Prime Sports compensation is sufficient to subject Williamson to jurisdiction for breaching a contract in Florida. The allegation appears in the Complaint as follows: That at all relevant times herein mentioned, [Williamson] breached express terms of the [Agreement] with Plaintiffs and did so with the intent for Defendants to usurp and 5 In addition to the acts specified in the statute, which give rise to specific jurisdiction, “[a] defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.” § 48.193(2), Fla. Stat. This is known as general jurisdiction. It is undisputed that Prime Sports did not seek to establish general jurisdiction over Williamson. 6  misappropriate Plaintiffs’ trade/business secrets/business plans/work product and to usurp and misappropriate the due compensation owed to Plaintiffs pursuant to the [Agreement] for same; authorizing/instructing Defendants . . . to publically [sic] announce to the world that [Williamson] had signed with same Defendants to serve as his Global Marketing/Branding firm/Agent; refusing to, honor, adhere to and perform the terms and conditions of his [Agreement] with Plaintiffs; failing to and/or refusing to pay Plaintiffs the due compensation owed to Plaintiffs pursuant to the [Agreement] with Plaintiffs—all while knowing that he already had a valid and enforceable contract for same services with the Plaintiffs herein. For jurisdiction to lie pursuant to section 48.193(1)(a)(7), the breaching conduct must be a failure “to perform acts required by the contract to be performed in [Florida].” (Emphasis added). Here, the allegation, which says nothing about jurisdiction or Florida’s long-arm statute, is silent as to whether the breaching conduct occurred in Florida or whether performance was required in Florida. Moreover, the Agreement itself does not require any acts to be performed in Florida. Prime Sports contends that even though the Agreement is silent as to where payment was to be made, the legal presumption is that a debt is to be paid at the creditor’s place of business. See Unger, 513 So. 2d at 676 . While it is true that there is a legal presumption that debt is to be paid at the creditor’s place of business— even in the absence of an agreement to do so—the allegations in the Complaint say 7 nothing about this. In other words, there is no allegation in the Complaint that Williamson breached by failing to pay a debt in Florida. 6 Indeed, in the cases Prime Sports relies on in support of this legal presumption, though the agreement may have been silent, the complaint alleged jurisdiction based on a payment that was to be made in Florida. See Aspsoft, Inc. v. WebClay, 983 So. 2d 761 , 766 (Fla. 5th DCA 2008) (“It is sufficient for purposes of satisfying the first prong of the Venetian Salami analysis that a complaint allege that a contract was made by a resident plaintiff with a non-resident defendant and that payment was agreed to have been made in Florida.” (emphasis added)); Smith Architectural Group, Inc. v. Dehaan, 867 So. 2d 434 , 436–37 (Fla. 4th DCA 2004) (“In this case, the complaint alleged sufficient jurisdictional activity to bring this action within Florida’s long-arm statute. [Defendant] contracted with a Florida company and agreed to make payment to the company in Florida.”); Unger, 513 So. 2d at 676 (“The complaint clearly alleges the breach of an agreement that payment was to be made in Florida.” (emphasis added)); Guritz v. Am. Motivate, Inc., 386 So. 2d 60 , 61 (Fla. 2d DCA 1980) (“[Plaintiff’s] complaint alleges in part . . . [Defendant] has done acts enumerated in Section 48.193, Florida Statutes, . . . which acts are more particularly described as follows . . . breaches a contract in this state 6 Ford’s Affidavit states that Williamson breached the Agreement when he signed a contract with CAA to be his exclusive marketing agent. The Affidavit is also silent as to any breach of contract for failure to pay a debt in Florida. 8 by failing to perform acts required by the contract to be performed in this state, and more particularly failing to make payment for the goods sold and delivered by the plaintiff to the defendant in Bradenton, Manatee County, Florida.” (emphasis added)). 2. Business Allegations Prime Sports also argues that “the allegations of the complaint and the evidence in the affidavit demonstrate clearly that Williamson is subject to long-arm jurisdiction because he was ‘operating, conducting, engaging in, or carrying on a business or business venture in this state.’” Prime Sports fails to cite the specific allegations or evidence it is referring to. Moreover, Prime Sports actually admits in its Answer Brief that this specific argument was not raised below. Prime Sports primarily relies on three cases in support of its argument that Williamson, despite not having a local presence in Florida, was engaged in sufficient business activities in Florida: Bank of Wessington v. Winters Government Securities Corp., 361 So. 2d 757 (Fla. 4th DCA 1978); American Financial Trading Corp. v. Bauer, 828 So. 2d 1071 (Fla. 4th DCA 2002); and Gray v. ACT Holdings, Inc., 05- 21987-CIV, 2006 WL 8433399 (S.D. Fla. June 1, 2006). However, these cases are readily distinguishable. In Bank of Wessington, the Fourth District considered the “collective activities” of a nonresident bank, which included ten separate oral contracts with a 9 registered Florida broker during a two-month period to buy and sell Government National Mortgage Association Future Contracts. 361 So. 2d at 760 . The court concluded these activities were sufficient to show that the defendant bank was engaged in a general course of business in Florida for pecuniary benefit. Id. In Bauer, a resident of Texas initiated more than 120 transactions with a Florida commodities investment firm to trade approximately 2,540 commodities options over approximately a one-year period. 828 So. 2d at 1073 . The court concluded that these transactions, which involved more than $465,000, showed a general course of business activity in Florida. Id. at 1074. Finally, in Gray, Mr. Gray, a Florida resident, sued two California defendants for unjust enrichment after he was not paid for approximately 100 telephone conversations and for raising a total of $323,000 from Florida investors between December 2004 and January 2005 (Mr. Gray had also previously helped with other investments). 2006 WL 8433399 , at *1. The US District Court for the Southern District of Florida concluded it could exercise long- arm jurisdiction because the nonresident defendants “conducted business in Florida because they used a Florida resident to secure investments and to solicit Florida investors.” Id. at *3. Moreover, Mr. Gray’s claim for unjust enrichment arose from the nonresident defendants’ business activities in Florida. Id. Here, by contrast, over a nearly one-month period, there was only one instance of payment for an endorsement deal under the Agreement, which was for a television 10 commercial for the movie “Hobbs & Shaw.” It is undisputed that Prime Sports received $100,000 directly from the producers, retained a 15% commission, and sent the balance of $85,000 to Williamson. But this single transaction is not the same as the collective business activities in the above-cited cases. Moreover, it is not clear how any of Prime Sports’ claims arise from this transaction, as required by the long- arm statute. See Fincantieri, 241 So. 3d at 945 (“Section 48.193(1)(a) lists several specific acts that could subject a nonresident defendant to personal jurisdiction in Florida, provided that the plaintiff’s cause of action ‘arises from’ the specified acts.”). 3. Tort Allegations According to the allegations in the Complaint, in May 2019, Ford met Williamson in California and provided him with an “extensive and comprehensive” marketing plan, which included numerous multi-million-dollar opportunities that Prime Sports had obtained for Williamson. The Complaint further alleges that Williamson represented he was requesting the marketing plan to facilitate a direct working relationship between CAA, Williamson’s NBA Agent, and Prime Sports and that Williamson knew “the stated reason/intent . . . was false, misleading and untrue . . . .” According to Prime Sports, these allegations establish long-arm jurisdiction over Williamson under section 48.193.(1)(a)(2) (“Committing a tortious act within this state.”). 11  Prime Sports relies on Machtinger v. Inertial Airline Services, Inc., 937 So. 2d 730 (Fla. 3d DCA 2006) for the proposition that fraudulent misrepresentations from outside of Florida that are relied on in Florida and result in injury in Florida are tortious acts committed within the state for the purposes of long-arm jurisdiction. In Machtinger, the complaint alleged that the defendants conspired to obtain payment for work that was not completed. Id. at 733. In furtherance of this conspiracy, one of the defendants “allegedly submitted fraudulent invoices for the work to the [Plaintiff’s] Florida headquarters, misrepresented to [Plaintiff’s] officers in Florida that the work had been completed, signed [Plaintiff’s] checks for payment on the fraudulent invoices, and mailed the checks to Florida to obtain countersignatures.” Id. This Court determined that Florida could exercise long-arm jurisdiction based on the allegations in the Complaint. Importantly, this Court noted: [T]the amended complaint sufficiently allege[d] that the fraud could not have occurred but for [defendant’s] misrepresentations to [plaintiff’s] officers who reside, work, and control the corporation’s finances in Florida. [Plaintiff] allege[d] that the fraudulent misrepresentations were made in Florida, relied upon in Florida, and [plaintiff] countersigned and issued the checks from Florida. Therefore, [plaintiff] has successfully alleged that a substantial portion of the tortious acts occurred in Florida making personal jurisdiction over [defendant] proper. Id. at 735. 12  Conversely, the allegations Prime Sports relies on in its Complaint do not mention Florida nor do they mention Florida’s long-arm statute. In fact, it is unclear from the allegations whether the alleged misrepresentations were made at in-person meetings between Prime Sports and Williamson, all of which occurred outside of Florida, or whether the misrepresentations occurred via telephone or email. 7 Prime Sports contends that its Affidavit “expanded on the allegations by averring that all of Williamson’s requests, including the request to meet in California, were directed to Plaintiffs in Florida.” But it was not the requests to meet that were allegedly fraudulent but the reasons for requesting the marketing plan. The Affidavit does not say anything about the allegedly fraudulent reasons for requesting the marketing plan being directed to Florida; it simply states that the invitations to all in-person meetings outside of Florida were sent by Williamson to Florida phone numbers, email addresses, and office addresses. III. CONCLUSION Because Prime Sports has failed to allege sufficient jurisdictional facts to bring its action within the ambit of Florida’s long-arm statute, we reverse the denial 7 The allegations seem to undermine Prime Sports’ position. According to the Complaint, “on or about May 23, 2019,” Williamson met with Ford in California. Moreover, on that same day, “[Williamson], and/or his parents, requested that [Ford] provide them with a copy of Plaintiff’s extensive and comprehensive marketing plan . . . .” 13 of Williamson’s motion to dismiss for lack of personal jurisdiction. 8 We remand without prejudice to amend the Complaint. See Henderson v. Elias, 56 So. 3d 86 , 90 (Fla. 4th DCA 2011) (holding that dismissal of a complaint for insufficient jurisdictional allegations should be without prejudice to amend). Reversed and remanded. 8 Because the statutory prong of Venetian Salami has not been satisfied, it is unnecessary to address the more demanding constitutional inquiry. 14

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In The Court of Appeals Sixth Appellate District of Texas at Texarkana No. 06-19-00208-CR LETICIA NOHELY RAMIREZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 76th District Court Camp County, Texas Trial Court No. CF-17-01806 Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Chief Justice Morriss  MEMORANDUM OPINION Leticia Nohely Ramirez was convicted by a Camp County jury of manslaughter1 in the death of Saul Martinez. After our review of the record and applicable law, we affirm the trial court’s judgment, because (1) Ramirez did not preserve her claims that the trial court violated her due process and due course of law rights, (2) the evidence is sufficient to sustain the jury’s verdict, (3) excluding evidence of a violent altercation involving Ramirez’s victim was not error, and (4) no cumulative error has been shown. (1) Ramirez Did Not Preserve Her Claims that the Trial Court Violated Her Due Process and Due Course of Law Rights Ramirez’s first two points of error complain of the trial court’s ruling limiting expert testimony proffered by Ramirez. Ramirez wanted to call two expert witnesses to testify regarding Martinez’s possible cause of death. One desired expert was Dr. Ronald Tisdell, who held a doctorate in clinical pharmacology and was also trained as a forensic toxicologist. Tisdell was allowed to testify to the jury about the effects of cocaethylene, a toxic substance produced in the body when alcohol and cocaine are combined. Cocaethylene has been “determined to cause sudden death in people.” Tisdell cited “one study that’s demonstrated . . . up to 25 times higher risk of sudden death when cocaethylene is present than with cocaine by itself.” This was excited delirium syndrome, according to Tisdell. 1 See TEX. PENAL CODE ANN. § 19.04. Ramirez was indicted for murder, and the jury convicted on the lesser offense. 2  The trial court, however, ruled that Tisdell was not qualified to, and could not, offer testimony that Martinez’s death was a result of excited delirium or opine that Martinez had a substance abuse problem.2 Ramirez also made an offer of proof regarding an incident in Austin in March 2017, where Martinez went from being a calm bar patron to suddenly harassing other customers and picking a fight. Martinez was arrested as a result of this altercation; at the jail, the nurse refused to admit him because of a high heart rate, and Martinez was hospitalized instead. Ramirez wanted evidence of the Austin incident before the jury so her other expert, a former medical examiner and pathologist, could consider that incident in explaining his opinion that Martinez died from excited delirium syndrome. The trial court granted the State’s motion in limine, which argued that the Austin event was offered only to show Martinez’s character or propensity to be the first aggressor. The trial court sustained the State’s objections to the Austin event. On appeal, Ramirez argues that the trial court’s limitation on the testimony of these witnesses violated his due process rights under the United States Constitution (point of error one) and the due course of law provision of the Texas Constitution (point of error two). Nowhere in the record can we find anything close to a complaint to the trial court that comports with Ramirez’s appellate complaints. A “point of error on appeal must comport with the objection made at trial.” Wilson v. State, 71 S.W.3d 346 , 349 (Tex. Crim. App. 2002). Ramirez never argued to the trial court that its limitations on Ramirez’s proffered testimony violated her federal 2 After both sides questioned Tisdell at a Daubert hearing, the court directly asked Tisdell if he had ever “testified in the State of Texas as an expert regarding excited delirium?” Tisdell answered, “I haven’t testified concerning excited delirium. I -- during my education and during my practice, I have seen excited delirium.” 3 due process or state due course of law rights. Nor did she urge these points in her motion for new trial. The only objections from Ramirez at trial were that she was “entitled to put on . . . [her] best defense” and that she “need[ed] this information” about the Austin event before the jury. In answering the State’s objection to testimony from Tisdell, Ramirez told the trial court “Daubert’s[3] threshold has been met” and Tisdell’s “scientific knowledge” would “assist the trier of fact.” Ramirez never made a complaint on constitutional grounds to the trial court. She therefore will not be heard to urge those arguments on appeal. “The purpose of requiring a specific objection in the trial court is twofold: (1) to inform the trial judge of the basis of the objection and give him the opportunity to rule on it; (2) to give opposing counsel the opportunity to respond to the complaint.” Resendez v. State, 306 S.W.3d 308 , 312 (Tex. Crim. App. 2009). “Parties are not permitted to ‘bootstrap a constitutional issue from the most innocuous trial objection,’ and trial courts must be presented with and have the chance to rule on the specific constitutional basis for admission because it can have such heavy implications on appeal.” Golliday v. State, 560 S.W.3d 664 , 670 (Tex. Crim. App. 2018) (quoting Clark v. State, 365 S.W.3d 333 , 340 (Tex. Crim. App. 2012)).4 Ramirez never complained to the trial court that the court’s ruling violated her due process or due course of law rights. The court thus had no opportunity to rule on those objections, and the State never had an opportunity to answer those arguments. We overrule Ramirez’s first two points of error. 3 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). 4 See also Reyna v. State, 168 S.W.3d 173 , 179 (Tex. Crim. App. 2005) (appellant’s argument to the trial court to allow a line of testimony on basis of “credibility” did not preserve Confrontation Clause point of error). 4 (2) The Evidence Is Sufficient to Sustain the Jury’s Verdict Ramirez also asserts that the evidence was not sufficient to support her conviction for manslaughter. We disagree. “In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court’s judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt.” Williamson v. State, 589 S.W.3d 292 , 297 (Tex. App.—Texarkana 2019, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893 , 912 (Tex. Crim. App. 2010) (plurality op.); Jackson v. Virginia, 443 U.S. 307 , 319 (1979); Hartsfield v. State, 305 S.W.3d 859 , 863 (Tex. App.—Texarkana 2010, pet. ref’d)). “We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury ‘to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’” Id. (quoting Hooper v. State, 214 S.W.3d 9 , 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318 –19; Clayton v. State, 235 S.W.3d 772 , 778 (Tex. Crim. App. 2007)). “Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge.” Id. (quoting Malik v. State, 953 S.W.2d 234 , 240 (Tex. Crim. App. 1997)). “The ‘hypothetically correct’ jury charge is ‘one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.’” Id. (quoting Malik, 953 S.W.2d at 240). 5  To prove manslaughter, the State must show beyond a reasonable doubt that Ramirez “recklessly cause[d] the death of an individual.” TEX. PENAL CODE ANN. § 19.04. The charge provided that, if the jurors had reasonable doubt on the indicted offense of murder, they should consider whether Ramirez “recklessly cause[d] the death of . . . Martinez . . . by choking him with her hands and arms” or by “impeding the breathing of Martinez . . . by blocking the nose and mouth of Martinez . . . by forcing his face against the ground” or both, in which case they were to find Ramirez guilty of manslaughter. On Saturday night, September 23, 2017, Ramirez, her brother, Luis,5 and some of their friends went to a brewery-pub in Pittsburg, then to a local bar down the street. According to Ramirez, they arrived at the pub about 11:30 p.m. Ramirez testified that she ate dinner and had two alcoholic drinks there. The group next went down the street to Jerry’s, a local bar. They drank, played shuffleboard, and socialized with the victim, Martinez. Ramirez had two bourbon- and-colas and a “couple of Vegas Bomb shots.”6 Martinez stopped by the Ramirez table and visited with the group. He did shots with them. Jerry’s closed about midnight. At that point, Ramirez invited some of her friends to continue the party at her house. Martinez’s older brother, Oscar, testified for the State. He said that he and Martinez were at Jerry’s Bar about 10.30 p.m. or so after a long day of working with horses. Oscar observed Martinez visit the Ramirez table, as described by Ramirez. 5 The reporter’s record spells the brother’s name Louis. But from evidence admitted, such as identifying information collected from his cell phone and Ramirez’s pronunciation in one of her interviews, we believe the proper spelling is L-u-i-s, and we use that spelling. 6 Ramirez described this shot as Crown Royal whiskey, Red Bull energy drink, and another liquor such as Malibu rum or peach schnapps. 6  When Jerry’s closed, Ramirez and a couple of friends stopped at a convenience store for soft drinks and ice, then continued to the rural home where she lived with her parents. Some people brought beer; Ramirez had a bottle of liquor that she shared with some of the group. Martinez was invited, and Ramirez said Martinez arrived about 2:30 a.m. According to Ramirez, the group generally hung out, chatted, and drank various alcoholic beverages for perhaps an hour or two. She described leaning against one of the guest’s pick-up trucks and talking to Christian Garcia while, nearby, her brother Luis was talking to Martinez. She described Martinez as “drinking, having fun” like the others. She said she “could tell he’d been drinking” but saw nothing to indicate “he was on drugs or anything like that.”7 Asked if she knew how much Martinez drank at her house, Ramirez said he had some “Jack and Coke.” She said she had a bottle of Jack Daniels whiskey, which she claimed was not big. She said that bottle was split among four people. At some point, Ramirez noticed Martinez and Luis “disagreeing very strongly, raising their voices.” She heard Martinez saying, “[L]et me get that bitch,”8 referring to her, and her brother, Luis, protesting, “[N]o, no, that’s my sister.” Ramirez testified that Luis and Martinez scuffled and pushed each other and that Luis intercepted Martinez as he tried to get to Ramirez. The two men calmed for a moment, “then all of sudden, [Martinez] . . . bear hug[ged] [Luis] and 7 Martinez’s autopsy showed THC and cocaine in his system. Also present was cocaethylene, produced from the combination of cocaine and alcohol. 8 Other statements in the record suggest Martinez’s comments constituted threats to sexually assault Ramirez. 7 . . . pushe[d] him . . . .”9 Martinez threw Luis into the side of a nearby truck causing a significant dent in the truck’s side panel. Ramirez went to her brother’s aid. She “pulled [Martinez] back. [She] wrapped [her] arm around [Martinez’s] neck and pulled him back.” Luis was on the ground beneath Martinez, and Ramirez was on Martinez’s back. Ramirez demonstrated her actions for the jury, which she described as “grabb[ing]” Martinez and “pull[ing] him back.” Ramirez said, “I basically threw myself back. I mean, I had to use all my force to pull him back.” Ramirez fell off or rolled off Martinez; then Christian “immediately jumped in.” Ramirez described Martinez as being on his stomach, on the ground; and she, Luis, and Christian were holding him down. At this point, Ramirez said she did not “know if he was saying anything,” but “he was making noises.” Martinez continued resisting as the three held him down. Ramirez, who had worked as a jailer in Titus County, went to her room to look for a set of handcuffs. She did not find those but returned with a package of zip-ties. She tried to zip-tie Martinez’s wrists to his beltloops but could not. She tried to connect more than one zip-tie together to make a longer zip-tie but was unsuccessful. By this point, Martinez was subdued, and Ramirez and her friends tried to reach Martinez’s brother or friends. Oscar Martinez later discovered he missed calls from Ramirez at 5:26 and 5:27 a.m.10 Unable to reach Martinez’s brother, Ramirez called Martinez’s friend 9 Ramirez estimated Luis weighed about 185 pounds. The autopsy revealed that Martinez was five-foot, eight-inches tall and weighed 225 pounds. Martinez, who was twenty-four-years old at his death, had played four years of college football. 10 Cell phone records indicated that Oscar missed calls from Ramirez at 5:26 and 5:27 a.m. Later (the record does not specify if it came that weekend or later), Oscar received a short video recording via cell phone. This video was 8 Richard Ledesma about 5:45 a.m. Ledesma answered, and Ramirez asked him to come to her house. According to Ledesma, Ramirez told him, “[C]ome get your friend,” i.e., Martinez, but she did not elaborate. Ledesma arrived about 6:00 a.m. It was very dark at Ramirez’s, and Ledesma did not see Martinez until he tripped over him. Ledesma thought Martinez was passed out drunk. He asked Ramirez and the others what had happened, but they provided no answers. Around that time, he sent a photograph to Jeffery Skinner, a friend of Ledesma and Martinez. Thinking Martinez was drunk and passed out, Ledesma made light of the situation, and Skinner agreed. Asked how Ramirez was acting around Martinez, Ledesma said, “I think she was afraid and just, you know, afraid of what happened.” Ledesma stayed with the group about thirty minutes. Ramirez “was talking to [Martinez], but he wasn’t talking back or nothing at the time.” Ledesma was “confused” and “didn’t know what happened.” Ledesma grew suspicious; neither Ramirez, Luis, or Christian offered any explanation about Martinez’s condition or what had happened. Noticing fresh scratches on Martinez, Ledesma kept asking for an explanation, but none was forthcoming. Finally, Ledesma suggested taking Martinez home. Ledesma and the other three put Martinez in the back of Ledesma’s truck; no attempt was made to get him in the cab.11 According to Ledesma, this was “[r]ight before daylight.” On the way to Martinez’s house, Ledesma said he “realized [he] already made a bad decision.” He began to suspect he was moving a dead body. about twenty-seven seconds long and captured someone telling various people it was their turn to drink; Oscar said it appeared Ramirez was holding the camera to film the short event. 11 A day later, in her second interview with Chief Deputy Randal Lain, Ramirez admitted that when they could not rouse Martinez to get him in the truck, she thought something was wrong. 9  On his way to Martinez’s home, Ledesma called Skinner.12 He asked Skinner to go to Martinez’s home and wake Martinez’s pregnant wife, Abby. Skinner arrived before Ledesma, Ramirez, and the rest of the group. Ramirez said that, once they arrived at Martinez’s home, Abby gave her a bottle of water, which Ramirez poured on Martinez’s face; he did not respond. At that point, Ramirez said that she realized “something wa[s] wrong.” She thought Martinez had alcohol poisoning. At 6:41 a.m., Ramirez called 9-1-1. Skinner testified that it was very unusual for Ledesma to call him at such an early hour, and he initially declined Ledesma’s request for help. Skinner arrived just minutes before Ramirez arrived from her house, with Martinez in the back of Ledesma’s pickup. Skinner went to the back of Ledesma’s truck to see Martinez. He reported: I looked over and he didn’t look good. I gave him some taps and a couple of shakes, and he -- I noticed that -- at first touch, his -- it was -- his skin wasn’t warm. It was pretty cold or cool, and it wasn’t that cold of a night. I -- I then checked for a pulse on his wrist and then his neck. I put my hand on his chest to see if I could feel anything. According to Skinner, several times Ramirez said Martinez had had too much to drink and they should get him to bed. When she tried to remove dirt from Martinez’s mouth and nose, Skinner told her not to touch him and that they should call an ambulance. Paramedics arrived and, at 6:51 a.m., assessed Martinez’s condition. They ultimately determined that Martinez had already died by the time they arrived. Martinez’s autopsy was conducted by Dr. Travis Danielsen. He described bruises, scrapes, and scratches on Martinez’s forehead, back, neck, and arms consistent with the 12 Ledesma called Skinner at 6:13 and 6:18 a.m. Sunday morning, September 24. 10 suggestion that Martinez had been in some form of altercation or restraint preceding his death. Danielsen testified that Martinez’s death was a homicide caused by asphyxia. To Danielsen, the injuries suggested that Martinez had been restrained, was “not getting enough oxygen,” and was “not able to breathe.” Danielsen used several autopsy photographs to explain Martinez’s injuries to the jury. In several areas of his shoulders, lower back of neck, and arms, Martinez had pinprick-sized hemorrhages.13 In line with the history of Martinez’s restraint before his death, Danielsen explained that such restraint could cause “increased vascular pressure[, which] will cause these small vessels to rupture and result in these pinpoint hemorrhages. . . .” Those hemorrhages were consistent with asphyxia. According to Danielsen, “He’s not able to breathe. He may have had pressure on his neck. All of this leads to this increase of vascular pressure which results in the petechial hemorrhages.” The State then asked Danielsen about excited delirium syndrome, which Ramirez had raised as a potential alternative cause of Martinez’s death. Danielsen explained excited delirium syndrome as something that’s described in individuals who are aggressive, hyper-aggressive, unable to [be] restrain[ed], or unable to kind of [be] reign[ed] in, if you will. These settings often involve law enforcement attempting to restrain the person. Oftentimes at the end of this restraint, the person becomes unconscious or stops breathing. A lot of things that are associated with it are drugs, typically stimulant- type drugs. Danielsen was not aware of excited delirium syndrome being recognized by the American Medical Association. Although Martinez’s toxicology report showed a high blood alcohol content level and a “relatively low [level] of cocaine,” Danielsen said these factors did not 13 The technical term for these small hemorrhages is petechial hemorrhages. 11 contribute to Martinez’s death. Also not suggesting an alternative reason for Martinez’s death was the presence of cocaethylene, a by-product of the combination of alcohol and cocaine.14 Danielsen ruled out excited delirium as having caused Martinez’s death because of the “clear evidence of injury in this case.” In Danielsen’s “experience and education, the cases that do involve excited delirium or excited delirium syndrome, there’s typically little to no injuries noted at autopsy.”15 Addressing Paramedic Denie Cranford’s testimony that rigor mortis seemed to have been present when she examined Martinez, Danielsen pointed out that, while rigor mortis typically “begins a few hours after death,” the process can be accelerated by “extreme physical exertion just before death” or by “[s]timulant drugs.” Finally, Camp County Chief Deputy Randal Lain testified that he interviewed Ramirez twice in the two days after Martinez’s death. Most significant to Lain was that Ramirez, in her initial statements to law enforcement at the Martinez home or in her first interview with Lain Sunday morning, did not mention having put her arm around Martinez’s neck. Only after Lain interviewed other people at the gathering at Ramirez’s house did he find out about Ramirez’s neck hold on Martinez. Confronted at her second interview about this, Ramirez said she did not tell Lain earlier because she was scared. Ramirez told Lain that they had not called the police when Martinez was lying on the ground because she did not think he was seriously injured. 14 THC was also found in Martinez’s toxicology report. 15 The autopsy also indicated that Martinez had a slightly enlarged heart; Danielsen testified that that did not contribute to Martinez’s death. 12  The evidence showed that various people, including Ramirez and Martinez, had been drinking alcoholic beverages from about 10:30 or 11:30 p.m. Saturday night until somewhere between 2:00 and 4:00 a.m. Sunday morning. It is not clear how much anyone drank or that anyone drank consistently throughout the night and early morning. Ramirez claimed Martinez went from engaging in regular conversation with Luis to suddenly rushing to attack her and from wrestling or fighting with Luis to being so violent that three people had to basically pile on to him to subdue him and get him to the ground. Ramirez acknowledged having her arm around Martinez’s neck for some period as part of the melee, and she acknowledged that choking or impeding someone from breathing could kill that person. At the autopsy, Martinez was observed to have dirt in or around his mouth and nostrils. Danielsen explained that asphyxia could have been accomplished by compressing Martinez into the ground or by having pressure around his neck. The evidence was sufficient to support the jury’s verdict that Ramirez was guilty of manslaughter. We overrule this point of error. (3) Excluding Evidence of a Violent Altercation Involving Ramirez’s Victim Was Not Error Ramirez also challenges the trial court’s exclusion of proffered testimony about an incident in Austin about six months before the gathering at Ramirez’s house in September 2017. Ramirez offered testimony from Edgar Uribe, a bartender from Austin. Uribe testified about a night in March 2017 where Martinez was a customer at Uribe’s bar. In an offer of proof, Uribe said that Martinez was “a nice guy” who ordered alcoholic beverages over “an hour or two.” Martinez left and returned between half an hour to an hour later, when he “started causing 13 trouble” and was “going after one of [Uribe’s] regular[]” customers. Uribe spoke to Martinez outside the bar and calmed him some.16 Nonetheless, Martinez went back into the bar, heading for the customer he had been bothering. Uribe then “tripped” Martinez and “tied him with [Uribe’s] belt.” Uribe described Martinez in this encounter as having “a lot of energy” with “heavy breathing” and as “sweating like crazy . . . all over the place.” He said that Martinez’s “heart was racing.”17 Law enforcement arrived and arrested Martinez. Ramirez introduced, for purposes of the offer of proof, the Austin Police Department’s incident report. The report stated that, at the Austin jail, the nurse refused Martinez admittance based on “high heart rate.” Ramirez presented no evidence that Martinez was on cocaine or had cocaine in his system that March night in Austin. Ramirez urged admission of Uribe’s testimony in support of her defensive theory that Martinez died from excited delirium syndrome. As described above, Danielsen described excited delirium syndrome as occurring in situations where a person, who is perhaps on stimulant drugs or is obese, dies suddenly after having been restrained in some manner. Danielsen also testified that, unlike Martinez in this case, excited delirium syndrome cases seldom involve “injuries noted at autopsy.” Ramirez wanted this testimony presented to the jury so that she could elicit an opinion about the relevance of this incident to the opinion of Dr. Besant-Matthews, a retired pathologist and medical examiner called to testify as part of Ramirez’s case-in-chief. 16 Martinez “bought a few people some drinks.” 17 Uribe could feel this as he held Martinez down. He stated, “[H]e was, like, breathing hard. He looked like he had just run a mile.” 14  “We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.” Flowers v. State, 438 S.W.3d 96 , 103 (Tex. App.—Texarkana 2014, pet. ref’d) (citing Martinez v. State, 327 S.W.3d 727 , 736 (Tex. Crim. App. 2010)). “Abuse of discretion occurs only if the decision is ‘so clearly wrong as to lie outside the zone within which reasonable people might disagree.’” Id. (quoting Taylor v. State, 268 S.W.3d 571 , 579 (Tex. Crim. App. 2008) (citing Montgomery v. State, 810 S.W.2d 372 , 391 (Tex. Crim. App. 1990) (op. on reh’g))). “We may not substitute our own decision for that of the trial court.” Id. (citing Moses v. State, 105 S.W.3d 622 , 627 (Tex. Crim. App. 2003)). “We will uphold an evidentiary ruling if it was correct on any theory of law applicable to the case.” Id. (citing De La Paz v. State, 279 S.W.3d 336 , 344 (Tex. Crim. App. 2009)). Ramirez has failed to demonstrate that the trial court abused its discretion in excluding this evidence. Beyond his testimony to the jury, on an offer of proof, Besant-Matthews conceded that, even if he was not allowed to consider Uribe’s testimony, his conclusions about Martinez’s death would probably not change. There was no evidence of cocaine in Martinez’s system during the Austin event. Danielsen had testified that Martinez’s injuries were different from those of a person whose death was attributed to excited delirium. Danielsen also testified that, to his knowledge, excited delirium syndrome had not been acknowledged by the American Medical Association. The trial court’s evidentiary ruling was not “so clearly wrong as to lie outside the zone within which reasonable people might disagree.” Taylor, 268 S.W.3d at 579 . We overrule this point of error. 15 (4) No Cumulative Error Has Been Shown Ramirez also claims cumulative error. This argument is predicated on this Court finding error in some or all of her appellate complaints. “It is conceivable that a number of errors may be found harmful in their cumulative effect.” Chamberlain v. State, 998 S.W.2d 230 , 238 (Tex. Crim. App. 1999). However, where an appellant fails to show error in separate claims, no cumulative harm is show. Buntion v. State, 482 S.W.3d 58 , 79 (Tex. Crim. App. 2016) (“appellant has failed to prove error concerning each of these claims separately, and so we find no cumulative harm”). See Hughes v. State, 24 S.W.3d 833 , 844 (Tex. Crim. App. 2000) (where allegations of constitutional violations are unproved, “no ‘cumulative’ harm could have occurred”). Since no claimed errors have been found, we overrule this point of error. We affirm the trial court’s judgment. Josh R. Morriss, III Chief Justice Date Submitted: September 1, 2020 Date Decided: December 1, 2020 Do Not Publish 16

2020-03-06 02:10:29.166725+00

http://www.tsc.state.tn.us/sites/default/files/golden_tavaris_markee_opn.pdf

03/05/2020 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs October 2, 2019 STATE OF TENNESSEE v. TAVARIS MARKEE GOLDEN Appeal from the Circuit Court for Madison County No. 17-604 Donald H. Allen, Judge ___________________________________ No. W2018-01956-CCA-R3-CD ___________________________________ A Madison County Circuit Court Jury convicted the Appellant, Tavaris Markee Golden, of aggravated assault, a Class C felony, employing a firearm during the commission of or attempt to commit a dangerous felony, a Class C felony, and attempted voluntary manslaughter, a Class D felony, and he received an effective twelve-year sentence. On appeal, the Appellant contends that the trial court erred by refusing to merge the attempted voluntary manslaughter conviction into the aggravated assault conviction and that the merger would have negated his conviction of employing a firearm during the commission of a dangerous felony and the six-year sentence he received for the offense. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T. WOODALL and ROBERT W. WEDEMEYER, JJ., joined. J. Colin Morris, Jackson, Tennessee, for the appellant, Tavaris Markee Golden. Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant Attorney General; Jody S. Pickens, District Attorney General; and Bradley F. Champine, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION I. Factual Background In November 2017, the Madison County Grand Jury indicted the Appellant for attempted first degree premeditated murder, aggravated assault with a deadly weapon, and employing a firearm during the commission of or attempt to commit a dangerous felony.1 In April 2018, a jury convicted him of attempted voluntary manslaughter as a lesser-included offense of attempted first degree murder, aggravated assault, and employing a firearm during the commission of or attempt to commit a dangerous felony.2 Although the Appellant does not contest the sufficiency of the evidence, we will briefly summarize the proof presented at trial. On December 25, 2016, the victim, Charles Bommer, was at a family gathering outside his mother’s house in Jackson. About 5:20 p.m., the Appellant came to the house in his Chevrolet Tahoe to pick up one of Bommer’s sisters, who was the Appellant’s girlfriend. The Appellant and the victim had previously had “some trouble.” The victim approached the Tahoe and told the Appellant to leave because the Appellant was trespassing. The Appellant got out of his Tahoe, took a shotgun out of the back of the vehicle, and shot the victim in the stomach. The Appellant then returned the shotgun to the Tahoe and drove away. The victim denied spitting in the Appellant’s face or hitting him prior to the shooting. A family member transported the victim to Jackson General Hospital. The victim was in “grave” condition when he arrived, and the doctor who treated him in the emergency room did not expect him to survive. The victim had multiple surgeries and spent a couple of months in the hospital. The police arrested the Appellant in Columbia four or five days after the shooting and interviewed him on December 30, 2016. During the interview, the Appellant claimed that he shot the victim because he thought the victim had a gun and because he was afraid of the victim. He also claimed that the victim spit on him and punched his face before the shooting. One of the police officers who conducted the Appellant’s interview saw what appeared to be a tooth impression on the inside of the Appellant’s cheek. On cross- examination, the officer testified that the Appellant’s injury “looked like it would line up with his teeth” and that the injury could have resulted from a fist punching the Appellant’s face. After the jury convicted the Appellant, the trial court held a sentencing hearing and imposed a sentence of six years for aggravated assault, a Class C felony, six years for employing a firearm during the commission of or attempt to commit a dangerous felony, a Class C felony, and four years for attempted voluntary manslaughter, a Class D felony. The trial court ordered that the Appellant serve the six-year sentence for employing a 1 The indictment specified attempted first degree murder as the “dangerous felony.” See Tenn. Code Ann. § 39-17-1324 (i)(1)(A). 2 Attempted voluntary manslaughter also is a “dangerous felony.” See Tenn. Code Ann. § 39-17 - 1324(b)(2), (i)(1)(C). -2- firearm during the commission of or attempt to commit a dangerous felony consecutive to the other two sentences for a total effective sentence of twelve years. II. Analysis The Appellant contends that the trial court erred by refusing to merge the conviction of attempted voluntary manslaughter into the conviction of aggravated assault because he committed only one act. He further contends that the merger would have negated his conviction of employing a firearm during the commission of or attempt to commit a dangerous felony and the six-year sentence he received for the offense because aggravated assault is not a “dangerous felony” under Tennessee Code Annotated section 39-17-1324(i)(1). The State argues that the trial court did not err. We agree with the State. The double jeopardy clauses of the United States and Tennessee Constitutions protect an accused from (1) a second prosecution following an acquittal; (2) a second prosecution following conviction; and (3) multiple punishments for the same offense. See State v. Watkins, 362 S.W.3d 530 , 541 (Tenn. 2012). The instant case concerns the third category, protection against multiple punishments for the same offense in a single prosecution. “Multiple punishment claims fall into one of two categories: (1) unit-of- prosecution claims; or (2) multiple description claims.” State v. Hogg, 448 S.W.3d 877 , 885 (Tenn. 2014) (citing Watkins, 362 S.W.3d at 543 ). The “threshold inquiry” in multiple description claims is whether the dual convictions arose from the same act or transaction. State v. Itzol-Deleon, 537 S.W.3d 434 , 441-42 (Tenn. 2017). If so, a double jeopardy violation may exist. “It is well settled in Tennessee that, under certain circumstances, two convictions or dual guilty verdicts must merge into a single conviction to avoid double jeopardy implications.” State v. Berry, 503 S.W.3d 360 , 362 (Tenn. 2015) (order). “Whether multiple convictions violate double jeopardy is a mixed question of law and fact that we review de novo with no presumption of correctness.” State v. Smith, 436 S.W.3d 751 , 766 (Tenn. 2014). The State acknowledges that the convictions arose from the same act or transaction but argues that the trial court properly refused to merge the convictions. In support of its argument, the State relies on State v. Feaster, 466 S.W.3d 80 (Tenn. 2015). In that case, the defendant beat the victim, with whom he had been living, so severely that she remained unconscious for three days. Feaster, 466 S.W.3d at 82. A jury convicted him of attempted voluntary manslaughter as a lesser-included offense of attempted first degree murder and convicted him of aggravated assault, and the trial court refused to merge the convictions. Id. at 83. A divided panel of this court affirmed the -3- defendant’s convictions and sentences, but one member of the panel dissented in part and concluded that the trial court should have merged the convictions pursuant to double jeopardy principles. Id. On appeal to our supreme court, the supreme court ruled that the defendant’s convictions did not violate double jeopardy principles because each of the offenses contained elements that the other did not and because there was no evidence that the legislature intended to prohibit multiple punishments in such circumstances. Like Feaster, the jury in this case convicted the Appellant of attempted voluntary manslaughter as a lesser-included of attempted first degree murder and convicted him of aggravated assault. Furthermore, both of the convictions arose out of the same incident. “Voluntary manslaughter is the intentional or knowing killing of another in a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner.” Tenn. Code Ann. § 39-13-211 (a). Relevant to this case, criminal attempt occurs when a person “[a]cts with intent to complete a course of action or cause a result that would constitute the offense, under the circumstances surrounding the conduct as the person believes them to be, and the conduct constitutes a substantial step toward the commission of the offense. Tenn. Code Ann. § 39-12-101 (a)(3). As charged in the indictment, aggravated assault occurs when a person intentionally or knowingly causes bodily injury to another and uses or displays a deadly weapon. Tenn. Code Ann. § 39 - 13-101(a)(1), -102(a)(1)(A)(iii). Both of the offenses contain elements that the other does not, and there is no evidence that the legislature intended to prohibit multiple punishments in such circumstances. Accordingly, we must conclude that the Appellant’s dual convictions do not violate double jeopardy. Given that the trial court properly refused to merge the convictions, we find no need to address the Appellant’s claim that the merger would have negated his conviction and six-year sentence for employing a firearm during the commission of or attempt to commit a dangerous felony. III. Conclusion Based upon the record and the parties’ briefs, we affirm the judgments of the trial court. _________________________________ NORMA MCGEE OGLE, JUDGE -4-

2021-01-26 21:00:46.774024+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2021/01/26/18-71689.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 26 2021 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS LILIK AJU LINDAWATI; FOFU No. 18-71689 TJOENG, Agency Nos. A075-758-507 Petitioners, A075-758-508 v. MEMORANDUM* MONTY WILKINSON, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted December 9, 2020 Pasadena, California Before: BEA, THAPAR,** and COLLINS, Circuit Judges. Partial Concurrence and Partial Dissent by Judge COLLINS Petitioners Lilik Lindawati and Fofu Tjoeng seek review of the denial by the Board of Immigration Appeals (BIA) of their motion to reopen due to their failure * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Amul R. Thapar, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. to establish changed country conditions and prima facie eligibility for relief. We have jurisdiction under 8 U.S.C. § 1252 to review denials of motions to reopen. We review denials of motions to reopen for abuse of discretion, “although [de novo] review applies to the BIA’s determination of purely legal questions.” Cano-Merida v. INS, 311 F.3d 960 , 964 (9th Cir. 2002) (citation omitted). Factual findings are reviewed for substantial evidence. Sharma v. INS, 89 F.3d 545 , 547 (9th Cir. 1996). We deny the petition. Because Petitioners’ motion is based on changed country conditions, there is no time limit within which they must have filed it. 8 C.F.R. § 1003.2 (c)(3)(ii). In addition to establishing changed country conditions, Petitioners must also establish prima facie eligibility for relief. INS v. Abudu, 485 U.S. 94 , 104 (1988). Here, Petitioners’ original asylum application, adjudicated in 2003, was based on their claim of mistreatment by Muslims. The evidence included acts of violence against Chinese Christians, including a 1998 murder, anti-Christian massacre, and church burning, and a 2000 bombing. Petitioners’ evidence in support of this motion describes the rise of ISIS in Indonesia since 2003 and the threat to Christians there, in particular the existence of an Indonesian ISIS chapter, the increased visibility of ISIS supporters, the increase in terrorism due to ISIS 2 involvement, how local Islamic terrorism has been “eclipsed” by ISIS, and a series of January 2016 attacks in Indonesia by ISIS-affiliated terrorists. The BIA held that while Petitioners’ evidence documented “the plight of the vast, minority Christian population in Indonesia, the evidence proffered does not meaningfully reflect materially changed country conditions in Indonesia.” A continuation of the same type of violence may constitute changed conditions where that violence has intensified or increased. Salim v. Lynch, 831 F.3d 1133 (9th Cir. 2016). However, the numerous violent incidents described by Petitioners in their original asylum application provided the BIA with substantial evidence to conclude that conditions had not changed between 2003 and 2017. Thus, substantial evidence supports the BIA’s determination that Petitioners failed to establish changed country conditions. Petitioners also did not submit sufficient evidence of a risk of individualized harm. In Salim v. Lynch, 831 F.3d 1133 (9th Cir. 2016), Salim offered evidence supporting his claim of individualized risk of future persecution, namely “a letter from his sister in Jakarta describing the recent targeting of their local church.” Id. at 1136 . The 2017 letters from Lindawati’s sister and Tjoeng’s brothers do not cite any incidents of harm to them or anyone they personally knew. Nor did Petitioners present any other evidence that would have required the BIA to 3 conclude that an adequate showing of individualized risk had been made. Petitioners have therefore failed to establish prima facie eligibility for relief. Accordingly, the BIA acted within its discretion when it denied the motion to reopen. Thus, the petition for review is DENIED. 4  FILED Lindawati v. Wilkinson, No. 18-71689 JAN 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS COLLINS, Circuit Judge, concurring in part and dissenting in part: I agree with the majority that the BIA properly concluded that Petitioners did not submit sufficient evidence of a risk of individualized harm to meet their burden to establish prima facie eligibility for relief, and I agree that, on that basis, the BIA properly denied Petitioners’ motion to reopen. But I disagree with the majority’s alternative holding that Petitioners also failed to present sufficient evidence of changed country conditions for Chinese Christians in Indonesia between 2003 and 2018. The evidence presented to the agency on that score by Petitioners is substantially comparable to that discussed in Salim v. Lynch, 831 F.3d 1133 , 1138 (9th Cir. 2016), where we held that the BIA abused its discretion in concluding that country conditions for Christians in Indonesia had not materially changed after 2006, id. at 1141 . Although the BIA correctly distinguished Salim with respect to the individualized-risk point, the BIA did not explain how, in addressing the issue of changed country conditions, it was able to reconcile its conclusions on that score with our analysis in Salim. Accordingly, I would not rely on that alternative ground in upholding the BIA’s denial of Petitioners’ motion to reopen.

2020-01-17 22:01:49.683503+00

Murdock

*1284OPINION. Murdock: The Commissioner’s deficiency notices upon which the present proceedings are based do not disclose the method by which the Commissioner arrived at each deficiency, but, except in the case of Mrs. Henry Wilson, state that the explanation of the adjustments made in the determination of the taxpayer’s income-tax liabilities is set forth in certain office letters. In no instance have the petitioners put in evidence the office letters referred to in the deficiency notices. They did, however, offer in evidence revenue agents’ reports in which certain proposed deficiencies for the years involved were set forth. The offers of these reports were objected to by the respondent and we have sustained the objections because the connection, if any, between the determinations of the *1285Commissioner and the adjustments proposed by the revenue agent was never shown. In cases where revenue agents’ reports are offered in evidence, they can not be regarded as proof of what the Commissioner did unless they are in some way identified with the determination of the Commissioner. We have heretofore had occasion to consider similar situations. For example, in Findlay Dairy Co., 2 B. T. A. 917, we held as follows: The taxpayer also failed to allege in his petition or to submit as a matter of proof what action had been taken by the Commissioner with reference to the determination of the deficiency here in question. The Board is wholly uninformed, except by surmise, as to what the Commissioner did in connection with the audit of the taxpayer’s return. The taxpayer alleged four errors committed by the Commissioner, but wholly failed to state any facts showing that the Commissioner had done anything with respect to its return other than to determine the deficiency here in question, or to state facts upon which, if proven, the Board could find that the Commissioner had erred. Under these circumstances the determination of the Commissioner must be approved. In Capital Securities Co., 3 B. T. A. 75, we made the following statement: We believe it advisable to point out that we are wholly uninformed as to the value attributed by the Commissioner to the taxpayer’s property and to the rates of depreciation used in determining the tax liability. The statement attached to the deficiency letter discloses that the deficiency was based on a revenue agent’s report. No effort was made to advise us of the values and rates set forth therein which were the basis of the Commissioner’s determination. It is evident, we believe, that we can not find that the Commissioner erred unless we are first informed as to what he did in' committing the error of which the taxpayer complains. In S. L. Becker, 8 B. T. A. 65, we held that a revenue agent’s report not shown to have been used by the Commissioner was irrelevant and immaterial as to an issue to which the taxpayer claimed it related. Cf. Bruce & Human Drug Co., 1 B. T. A. 342; J. M. Lyon, 1 B. T. A. 378; Insley Manufacturing Co., 1 B. T. A. 1029; Acorn Refining Co., 2 B. T. A. 253; Wernecke-Schmitz Hardware Co., 2 B. T. A. 914; G. A. Miller, 6 B. T. A. 401; Workingman's Cooperative Association, 9 B. T. A. 385. In some of the cases above referred to it was apparent that revenue agents’ reports were the basis of the Commissioner’s determination, but where this essential link between the determination of the Commissioner and the report of the revenue agent is missing, the Board can not assume that adjustments contained in the revenue agent’s report have been carried into the Commissioner’s ultimate computation of the deficiencies. Such an assumption we believe would be unjustified, even in cases where the revenue agent in his report proposed a deficiency which coincides in amount with the *1286deficiency determined by the Commissioner. This is so for several reasons, one of which would be that the revenue agent might make a proper adjustment but assign an improper reason therefor, and if the Commissioner should adopt the adjustment but assign a proper reason therefor, the taxpayer would merely be knocking down his own straw man if he confined his allegation of error and his proof to the adjustment and explanation contained in the revenue agent’s report. Likewise, the Commissioner might arrive at the same deficiency by entirely different adjustments. Thus, in regard to most of the errors alleged by the petitioners in these proceedings there is nothing to show what the Commissioner did or that he made the adjustments which are alleged to be erroneous. Why then should we say he erred ? On these issues we sustain the Commissioner. The respondent in his answer admitted that he made certain adjustments which the petitioners had alleged were erroneous and we now proceed to consider the issues thus raised. It is admitted by the respondent that he diminished the partnership income of Wilson Brothers & Co. for the year 1922 by the amount of $1,148.44, which, owing to the fact that the partnership was on an accrual basis, he transferred to the year 1921, the year in' which such item accrued, but the respondent denies that the partners returned in the year 1922 their proportionate shares of the amount transferred. The testimony shows, however, that the partners rendered their individual returns for the year 1922 on the basis of their respective distributable shares of the profits prior to the adjustment of this item. Therefore the failure to diminish the individual partner’s income by their proportionate share of this amount for the year 1922 was error and, accordingly, an adjustment on account of this item must be made in the cases of the petitioners Henry Wilson, W. T. Wilson and F. A. Wilson for the year 1922. The petitioners, F. A. Wilson and W. T. Wilson, allege as error, the failure of the Commissioner to compute the profit on the sale of certain timber by taking as a basis the valuation of the same as of January 2, 1918, the date when the petitioners were given an interest in a partnership of which the timber was an asset. The respondent admits that, in computing the gain from the sale of this timber, he did not take into consideration the fair market value of the property as of January 2, 1918. The Revenue Act of 1921, section 202 (a) (2) and the Revenue Act of 1924, section 204 (a) (4) provide that the basis for the determination of gain or loss on the sale of property acquired by gift subsequent to February 28, 1918, and on or before December 31, 1920, shall be the fair market price or value of such property at the time of such acquisition. See Abraham B. Johnson et al., 7 B. T. A. 820. However, it does not *1287follow that this provision of the Revenue Act is controlling here. We do not know exactly what happened on January 2, 1918, in regard to the interest acquired by the two petitioners, but in any event each did not acquire any more than the interest of a partner in partnership assets, i. e., assets of the new partnership then formed which continued the business of the old without liquidation. We can not assume that the only asset which the partnership had was the timber in question and we do not decide what the result would be if this were a fact. When and-if the two petitioners dispose of their interests in the partnerships, which are the things they acquired by gift from their father on January 2, 1918, then of course in computing the gain to them from the transaction they will be entitled to deduct from the sales price the fair market value on January 2,1918, of the subject of the two transactions. But here the timber sold was only one of the assets of the partnership and the question is whether or not the Commissioner, in computing the distributive shares of the net income of the partnership, must, as a general principle, take into consideration and make adjustments for the fact that each asset of the partnership might have different bases for gain or loss on a sale if it were distributed proportionately among the partners as individuals so that each owned an undivided interest therein. It is a well recognized principle that the title to partnership property is not in the individual members of the firm so that either may assign or transfer to another an undivided share in any specific articles, but it is in the firm as an entirety, subject to the right of the partners to have it applied to the payment of the debts of the firm and the equities of the partners. See Modern Law of Partnership, Rowley, sec. 291 et seq., for discussion and citation of cases. See also Sam Harris, 11 B. T. A. 871. The revenue acts provide that each partner shall report his distributive share of the net income of the partnership. They do not specifically provide that, in computing the net income of the partnership, consideration shall be given to the fact that the interests of the partners in the partnership and the partnership assets may have cost the various partners different amounts or may have had different values at the time acquired. Cf. Alpin J. Cameron et al., 8 B. T. A. 120. In the present case we see no reason to hold that the Commissioner must use a different basis for computing the net income of the partnership for the sale of the timber when he attempts to tax one of the partners for his distributive share of the net income of the partnership during the year or years that the partnership is receiving payment for the timber than he would use in the case of any other partner. This is particularly true where, as here, we do not know whether or not the partnership agreement recognized or made any provision for the fact, *1288if it was a fact, that the timber in question was worth more at the time that the petitioners acquired their interest in the partnership than it was at the time that certain other partners acquired their interests in the preceding partnership. F. A. Wilson, who was called as a witness, stated that the partnership, in preparation for a suit in admiralty against the steamer Newport on account of the collision, set up on its books not only the cost of the repairs to the Svea, but also 5 per cent commission for supervising the repairs. In this connection he made the following statement: There was some doubt as to whether the commission was properly chargeable or not where repairs were made in the home port and, accordingly, the United States Commissioner who had charge of the adjustment of the damages in this case disallowed this particular item. He also stated that the action against the steamship Newport was still pending, but that the commission had been finally disallowed by the court. It appears, therefpre, that the partnership had set up the amount of the commission on its books, and that it did not include it in its taxable income for 1924, but the Commissioner added the amount to the income of the partnership for the year 1924. It is true, of course, that the partnership never received the amount of this commission, but in an accrual system of accounting the accrual of an amount does not depend upon actual receipt, Ernest M. Bull, Executor, 7 B. T. A. 993, but rather upon the fact that, in all reasonable probability the amount will be received. The petitioners have failed to prove that in 1924 there was not a reasonable certainty of its ultimate receipt. This being so we must affirm the Commissioner. With respect to the contributions made in the year 1924 by the petitioner, F. A. Wilson, to the Alpha Tau Omega Association, no evidence was introduced to show the character of this association and we can not take judicial notice of its purpose and character. Francis Cooley Hall et al., Executors, 2 B. T. A. 931. Nor do we know what other contributions this petitioner may have made that would be deductible from gross income; hence, we are unable to apply the 15 per cent limitation on such contribution provided for by statute. This deduction must be disallowed. The petitioner W. T. Wilson waived this point. The case of Mrs. Henry Wilson falls within a different category. Two years are involved, the year 1922 and the year 1923. The petitioner alleged that she had filed a consent in writing covering the year 1922, extending the statutory period of limitations to December 31, 1927. Under the four-year limitation the Commissioner would have had until some time in 1928 within which to make an assessment for the year 1923. The evidence does not dis*1289close when the return for that year was filed. On the 27th of December, 1927, the Commissioner addressed a deficiency notice to the petitioner covering the two years 1922 and 1923. This notice was registered in accordance with the statute, but was addressed to the petitioner at an address at which she had never resided and, accordingly, such notice was returned by the Post Office Department as undeliverable. Thereafter, and on January 23, 1928, the Bureau of Internal Revenue, but not the Commissioner himself, addressed an informal notice to the petitioner, in which a copy of the original notice was enclosed and in which she was advised that there had been a compliance with the provisions of section 274 (a) of the Revenue Act of 1926 by the registration of the deficiency notice and that the Bureau was desirous of forwarding the information in order that the petitioner might avail herself of the privilege of filing an appeal. The statement was made that the 60-day period began December 27, 1927, the date the notice was originally mailed to the petitioner. This second letter was not registered. The petitioner’s counsel in his brief argues that there are separate issues in respect to each of the years referred to in the deficiency notice. While he does not make it clear what his contention is with respect to the year 1922, it appears to be that the statute of limitations had expired on the date of the remailing and that the first mailing was a nullity. With respect to the year 1923 the petitioner contends that the deficiency notice could only be mailed under the provisions of section 283 (a) of the Revenue Act of 1926, and not under section 274 (a) of the same Act. We can not see that it is a matter of any great importance herein whether the deficiency notice was mailed under one or the other of the sections just above referred to. It is clear from the evidence that the address used by the Commissioner in the issuance of the original deficiency notice was not, and never had been, the residence or other address of the petitioner. Under several of our prior decisions such mailing could not be considered a compliance with the provisions of section 274 (a) of the Revenue Act of 1926, and consequently could not be considered a compliance with the provisions of section 283 (a) of the same Act. See Walter G. Morgan, 5 B. T. A. 1035; Utah Orpheum Co., 6 B. T. A. 343; Wyoming Central Association, 8 B. T. A. 1064; W. S. Trefry, 10 B. T. A. 134. The petitioner also calls attention in her brief to our decision in the case of Henry M. Day, 12 B. T. A. 161. This last decision is somewhat different from those previously cited, in that a deficiency notice was attempted to be delivered by hand, and we held that the method of notice provided by statute was exclusive, with the result that no other method, though it might be *1290effectual in giving actual notice, could be deemed to be a compliance with the statute. Since the original mailing did not under our decisions constitute such a notice-as the statute contemplates, in that it was not mailed to the correct address, and since the second notice enclosing the first did not constitute a compliance with the statute in that it was not registered, it is apparent that no notice, either for the year 1922 •or 1923, such as that provided for by statute, was ever sent to the petitioner. As a consequence, we must hold that there is no basis for a proceeding before this Board in the case of this petitioner for either of the years 1922 or 1923, and, being without jurisdiction, we dismiss the proceeding. Reviewed by the Board. In the case of Mrs. Henry Wilson order of dismissal will be entered. In the cases of the other petitioners, judgment may be entered wnder Bule SO. Smith and Love dissent. ARUNdell dissents on the last point concerning the matter of the dismissal of the proceeding filed by Mrs. Henry Wilson.

2020-01-17 22:01:49.714234+00

Murdock

OPINION. Murdock: Tinder date of July 21, 1925, the Commissioner of Internal Revenue sent a deficiency notice to the San Joaquin Fruit <& Investment Co., Tustin, Calif., the petitioner herein, in which he stated: The determination of your income tax liability for the years 1918 and 1919 has resulted in a deficiency in tax aggregating $111,281.07, as set forth in Bureau letters dated March 9, 1925, and April 22, 1925. *1291In a statement attached to this ^Letter this total deficiency was divided into a deficiency of $66,147.93 for 1918 and a deficiency of $45,138.14 for 1919. Within the proper time after receipt of this letter, the petitioner filed its petition with the Board at Docket No. 6988, in which it alleged four errors — one relating to invested capital, two relating to depreciation, and one relating to the use of improper comparatives in special assessment. Thereafter, the respondent filed his answer and the case came on for hearing in Los Angeles, Calif., at the conclusion of which hearing, upon the petitioner’s motion, the case was continued and placed upon the reserve calendar. Following this, the petitioner moved to amend its original petition in order to allege that the petitioner was not in existence during the taxable years and that inasmuch as the Commissioner is not trying to tax it as a transferee, it is not liable as a taxpayer for any alleged deficiency. This motion was granted, and thereafter the respondent filed his answer to the amended petition and the case came on for further hearing. In the original petition the caption was as follows: “ San Joaquin Fruit & Investment Co. (formerly San Joaquin Fruit Co.) Tustin, California.” The petition was verified by the president of the San Joaquin Fruit & Investment Co. and in the verification it was stated that the San Joaquin Fruit & Investment Co. was the successor to the San Joaquin Fruit Co. The verification of the amended petition was substantially the same. Under date of July 27, 1925, the Commissioner mailed a deficiency notice addressed to San Joaquin Fruit & Investment Co., Tustin, Calif., the petitioner herein, in which he stated: An audit of your income and profits tax return for the year ended December 31, 1920, has resulted in the determination of a deficiency in tax of $22,872.09 as shown in Bureau letter dated June 16, 1925. Thereafter, in due time, the petitioner filed its petition at Docket No. 6989 in substantially the same form as it filed its petition at Docket No. 6988. The Commissioner answered, the case was heard at the hearing at Los Angeles, Calif., above mentioned, after which it was continued and placed on the reserve calendar, an amended answer was filed raising the question of the identity of the taxpayer just as in the other case, the respondent answered and the case came on for further hearing. It appears that in neither of these proceedings is the Commissioner attempting to determine, assess or collect the liability, if any, of tne petitioner as a transferee of the property of the San Joaquin Fruit Co., in respect of the tax of that company for the taxable years. Moreover, the alleged taxes in controversy, if they be taxes at all, must be taxes of the San Joaquin Fruit Co., which seems to have been in business during the taxable years. The record shows *1292that the San Joaquin Fruit Co. was incorporated in October, 1906, under the laws of the State of California for certain purposes for a term of 25 years, with a capital stock of $100,000, divided into 1,000 shares of the par value of $100 each; on November 6, 1922, at a regular meeting of its board of directors they decided to call a meeting of the stockholders on November 18, 1922, for the purpose of considering and acting upon the proposition to dissolve the corporation, wind up its affairs and dispose of its assets according to law; this meeting of the stockholders was duly held on the 18th day of November, 1922, and from the minutes of that meeting it appears that the San Joaquin Fruit & Investment Co. held 801 shares of the stock of the San Joaquin Fruit Co.; at this meeting the resolution was adopted to dissolve the corporation, wind up its affairs and distribute its assets according to law; thereafter on the 26th day of December, 1922, a court of competent jurisdiction decreed that the directors of the San Joaquin Fruit Co. be made trustees for the dissolution of its assets and the winding up of its affairs and ordered them to distribute the real and personal property to the San Joaquin Fruit & Investment Co. and further ordered, adjudged and decreed that the San Joaquin Fruit Co. was thereby dissolved. The last paragraph of the decree was as follows: It Is Further, Ordered, Adjudged and Decreed, that the respective interests of the stockholders of said San Joaquin Fruit Company, have hereinbefore been fixed, namely, there were four stockholders as herein named, three of whom have assigned their whole interest herein unto the said San Joaquin Fruit and Investment Company, and that now the San Joaquin Fruit and Investment Company is the only stockholder, and the only person to whom said property and assets of said San Joaquin Fruit Company shall be distributed and conveyed. The record further shows that thereafter a copy of the decree was filed in the office of the Department of State of the State of California; the San Joaquin Fruit Co. on June 19, 1919, filed its income and profits-tax return for the year 1918, on March 15, 1920, filed its return for 1919, on March 15, 1921, filed its return for 1920, and on May 12,1922, filed its return for 1921; the San Joaquin Fruit & Investment Co. was incorporated in July, 1922, under the laws of the State of California, for a period of 50 years with a capitalization of $1,500,000 divided into 15,000 shares of the par value of $100 each, for certain purposes set forth in its articles of incorporation, which purposes were similar to, but broader and not the same as the purposes set forth in the articles of incorporation of the San Joaquin Fruit Co.; .under- date of December 29, 1927, the Commissioner sent a notice of liability under section 280 of the Eevenue Act of 1926 to the San Joaquin Fruit & Investment Co. as a transferee of the San Joaquin Fruit Co. liable for additional taxes of the latter company *1293for tile year 1921, following the receipt of which the San Joaquin Fruit & Investment Co. filed a petition with this Board at Docket No. 35835, which proceeding has not been consolidated with the present proceedings and is not being decided in the present proceedings. After carefully considering the facts before us, we are satisfied that the petitioner has made out a prima facie case, which has not been overcome by the respondent, which prima facie case shows that the petitioner was not in existence during the taxable years and that the tax liability which the Commissioner is trying to establish against the petitioner is not its tax liability. Therefore, for the years 1918, 1919, and 1920 an order of no deficiency will be entered. The situation in regard to the year 1921 is somewhat different. For that year, under date of September 1, 1926, the Commissioner sent a deficiency notice addressed to the “San Joaquin Fruit Company, c/o San Joaquin Fruit and Investment Company, Tustin, California,” in which he stated: An audit of your income and profits tax return for the calendar year 1921 has resulted in the determination of a deficiency in tax of $21,861.40 as shown in Bureau letter dated July 20, 1926. The letter of July 20, 1926, was addressed in the same way. On October 25, 1926, at Docket No. 20801, a petition was filed under the title of “ San Joaquin Fruit & Investment Company (formerly San Joaquin Fruit Company).” The petition was verified by the president of the San Joaquin Fruit & Investment Co., which verification stated that the San Joaquin Fruit & Investment Co. was the successor to the San Joaquin Fruit Co. Errors were set forth in this petition which were similar to the errors set forth in the above mentioned two petitions. The respondent filed his answer. The hearing at Los Angeles, Calif., covered this case also, at the conclusion of which hearing this case was continued and placed on the reserve calendar and came on for further hearing with the other three cases, all three of which cases were consolidated for hearing and decision by an order of the Board. At the last hearing the petitioner moved to amend its petition in this case as he had theretofore done in the other two cases and for the same purposes. On this motion, which was objected to by counsel for the respondent, we have taken no action. Upon consideration of the circumstances in connection with this proceeding at Docket No. 20801, we are of the opinion that the deficiency notice in question was sent to the San Joaquin Fruit Co. in connection with its tax liability for the year 1921 and that the deficiency notice was not a notice to the San Joaquin Fruit <& Investment Co. corporation which filed the petition herein and was not a notice of the determination of its tax liability for any *1294year, and that neither the San Joaquin Fruit & Investment Co., its president who verified the petition, nor counsel who prepared and signed the petition, had proper authority or purported to act for the San Joaquin Fruit Co. The petitioner herein not being the taxpayer within the meaning of the section of the Revenue Act giving the Board jurisdiction to hear and decide proceedings, we have no jurisdiction in this proceeding, and therefore dismiss the same. Bisso Ferry Co., 8 B. T. A. 1104; Bond, Inc., 12 B. T. A. 339; American Arch Co., 13 B. T. A. 552; Weis & Lesh Manufacturing Co., 13 B. T. A. 144; Sanborn Brothers, 14 B. T. A., 1059; Carnation Milk Products Co., 15 B. T. A. 556. For the years 1918, 1919, and. 19W judgment will be entered for the 'petitioner. The proceeding, in so far as it relates to the year 1921, is dismissed for lack of jurisdiction.

2020-01-17 22:01:49.746063+00

Aeundell

*1295OPINION. Aeundell : Petitioners contend that the term “ transferee,” as used • in section 280 of the Eevenue Act of 1926, is limited to heirs, legatees, devisees and distributees, the four classes named in subsection (f) of section 280. The statute does not define the meaning of the word *1296“transferee.” The language of section 280(f) was not intended, as we held in Victor H. Levy, 16 B. T. A. 653, to limit the meaning of the term to the classes mentioned, but was inserted to eliminate any doubt that it included those four classes. On the dissolution of the Stellar Coal Mining Co., petitioners, as stockholders thereof, received liquidating dividends on their stock in excess of the amount of the liability the respondent has asserted against them for unpaid taxes of the dissolved corporation. The petitioners are clearly transferees of property of the Stellar Coal Mining Co. Updike v. United States, 8 Fed. (2d) 918; certiorari denied, 271 U. S. 661; Grand Rapids National Bank, 15 B. T. A. 1166; E. F. Gehringer, 16 B. T. A. 214. The respondent concedes that collection of the deficiency asserted for unpaid taxes of the taxpayer for the year 1919 is barred by the provisions of sections 277(a)(2) and 278(d) of the Revenue Act of 1924. The question is also governed by Russell v. United States, 278 U. S. 181. The taxpayer’s return for the year 1920 was filed March 15, 1921, and the statutory period for assessment against it for taxes for that year did not expire until March 15, 1926. Section 250(d) of the Revenue Act of 1918 and section 277 (a) (2) of the Revenue Act of 1924. The additional tax of $4,601.72 asserted against the taxpayer for the year 1920 was assessed January 10, 1924, a date within the five-year period allowed by the statute for assessment. The provisions of section 280(b) (1) of the Revenue Act of 1926, enacted February 26, 1926, extended tire period of limitation for assessment of any liability of the petitioners, as transferees, for unpaid taxes of the taxpayer, one year after the expiration of the period of limitations for assessment against the taxpayer, or to March 15, 1927. The deficiency notices were mailed to the petitioners on September 7, 1926, a date prior to the expiration of the statutory period for assessment against them. The petitions instituting these proceedings were filed on November 4, 1926. Section 280(d) of the Revenue Act of 1926 suspends the running of the period of assessment against transferees until the decision of the Board becomes final, and for 60 days thereafter. Section 278(d) of the Revenue Act of 1926 reads, in part, as follows: Where the assessment of any income, excess-profits or war-profits, tax imposed by this title or by prior Act of Congress has been made (whether before or after the enactment of this Act) within the statutory period of limitation properly applicable thereto, such taxes may be collected by distraint or by a proceeding in court (begun before or after the enactment of this Act), but only if begun (1) within six years after the assessment of the tax * * *. *1297This section of the Act is retroactive to taxes payable under the Eevenue Act of 1918, and applies to the transferees. United States v. Updike, 32 Fed. (2d) 1. It follows that the period within which collection may be made from the transferees has not expired. The liability of each petitioner is $4,601.72, plus interest from February 26, 1926, at the rate of 6 per cent per annum. Henry Cappellini et al., 16 B. T. A. 802. Judgment will be entered wider Bule 50.

2020-12-02 13:02:52.141387+00

https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019cv0161-64-0

In the United States Court of Federal Claims No. 19-161C (E-Filed: December 2, 2020) ) BRIAN RICHMOND, et al., ) Motion to Dismiss; RCFC 12(b)(6); ) Fair Labor Standards Act (FLSA), Plaintiffs, ) 29 U.S.C. §§ 201-19; Anti- ) Deficiency Act (ADA), 31 U.S.C. §§ v. ) 1341-42; Government Employees ) Fair Treatment Act of 2019 THE UNITED STATES, ) (GEFTA); Pub. L. No. 116-1, 133 ) Stat. 3 (2019). Defendant. ) ) Jack K. Whitehead, Jr., Baton Rouge, LA, for plaintiff. Erin K. Murdock-Park, Trial Attorney, with whom were Joseph H. Hunt, Assistant Attorney General, Robert E. Kirschman, Jr., Director, Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant. Ann C. Motto, of counsel. OPINION AND ORDER CAMPBELL-SMITH, Judge. Plaintiffs in this putative collective action allege that the government, through several agencies, violated the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19, by failing to timely pay their earned overtime and regular wages during the partial government shutdown and lapse of appropriations that began on December 22, 2018. See ECF No. 1 at 2-3 (complaint). On May 3, 2019, defendant moved to dismiss the complaint for failure to state a claim on which relief can be granted, pursuant to Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (RCFC), on the basis that the Anti-Deficiency Act (ADA), 31 U.S.C. §§ 1341-42, prohibited the government from paying employees. See ECF No. 23. In analyzing defendant’s motion, the court has considered: (1) plaintiffs’ complaint, ECF No. 1; (2) defendant’s motion to dismiss, ECF No. 23; (3) plaintiffs’ response to defendant’s motion, ECF No. 26; (4) defendant’s reply in support of its motion, ECF No. 30; (5) defendant’s first supplemental brief in support of its motion, ECF No. 32; (6) plaintiffs’ response to defendant’s first supplemental brief, ECF No. 35; (7) defendant’s second supplemental brief in support of its motion, ECF No. 43; (8) plaintiffs’ response to defendant’s second supplemental brief, ECF No. 47; (9) defendant’s third supplemental brief in support of its motion, ECF No. 51; and (10) plaintiffs’ response to defendant’s third supplemental brief, ECF No. 53. The motion is now fully briefed and ripe for ruling. 1 The court has considered all of the arguments presented by the parties, and addresses the issues that are pertinent to the court’s ruling in this opinion. For the following reasons, defendant’s motion is DENIED. I. Background Beginning on December 22, 2018, the federal government partially shut down due to a lack of appropriations. See ECF No. 1 at 2-3. The named plaintiffs in this case were, at the time of the shutdown, employees of the Bureau of Prisons, within the United States Department of Justice. See id. In their complaint, plaintiffs allege that they are “‘[e]xcepted’ employees,” performing “emergency work involving the safety of human life or the protection of property,” and as such “were forced to continue to perform their duties designated as essential, without the receipt of their normally scheduled wages,” during the shutdown. Id. at 3 & n.1. Plaintiffs also allege that, in addition to being excepted employees required to work during a shutdown, they were also “classified as FLSA non-exempt.” Id. at 4-5. Despite being required to work during the shutdown, plaintiffs allege that they were not paid “in accordance with the minimum wage and overtime provisions of the [FLSA].” Id. at 3 . 1 Defendant moves for dismissal of plaintiffs’ complaint for only one reason—“for failure to state a claim upon which relief may be granted.” ECF No. 23 at 6. In one of its supplemental briefs, defendant suggests that a recent decision issued by the Supreme Court of the United States, Maine Community Health Options v. United States, 140 S. Ct. 1308 (2020), a case that does not involve FLSA claims, indicates that this court lacks jurisdiction to hear this case because the FLSA “contains its own provision for judicial review.” ECF No. 51 at 2. In the same brief, defendant acknowledges binding precedent from the United States Court of Appeals for the Federal Circuit to the contrary. See id. (citing Abbey v. United States, 745 F.3d 1363 (Fed. Cir. 2014)). The court will not review this entirely new basis for dismissal, which was made for the first time in defendant’s third supplemental brief, and which defendant acknowledges contradicts binding precedent. If defendant believes this court lacks jurisdiction to continue exercising its authority in this case, it may file a motion properly raising the issue. See Rule 12(h)(3) of the Rules of the United States Court of Federal Claims (RCFC) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). 2  According to plaintiffs, defendant “cannot show it acted in good faith during its violation of the FLSA and therefore, in addition to monetary damages, the [p]laintiffs are . . . entitled to liquidated damages.” Id. at 9. In support of this allegation, plaintiffs cite this court’s decision in Martin v. United States, 130 Fed. Cl. 578 (2017), a case in which the court “found that the federal government’s failure to timely pay similarly-situated plaintiffs violates the FLSA and that the government is liable for liquidated damages for committing such violations.” Id. at 8. Plaintiffs now seek the payment of “all regular, minimum, and overtime wages,” earned by plaintiffs, “liquidated damages equal to” any overtime or minimum wages earned, as well as attorneys’ fees and costs. Id. at 11. II. Legal Standards When considering a motion to dismiss brought under RCFC 12(b)(6), the court “must presume that the facts are as alleged in the complaint, and make all reasonable inferences in favor of the plaintiff.” Cary v. United States, 552 F.3d 1373 , 1376 (Fed. Cir. 2009) (citing Gould, Inc. v. United States, 935 F.2d 1271 , 1274 (Fed. Cir. 1991)). It is well-settled that a complaint should be dismissed under RCFC 12(b)(6) “when the facts asserted by the claimant do not entitle him to a legal remedy.” Lindsay v. United States, 295 F.3d 1252 , 1257 (Fed. Cir. 2002). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662 , 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 570 (2007)). III. Analysis A. Relevant Statutes This case fundamentally concerns the intersection of two statutes, the ADA and the FLSA. The ADA states that “an officer or employee” of the federal government “may not . . . make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation.” 31 U.S.C. § 1341(a)(1)(A). In addition, the ADA dictates that “[a]n officer or employee of the United States Government or of the District of Columbia government may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property.” 31 U.S.C. § 1342. In 2019, Congress amended the ADA, adding, in relevant part, the following: 3  [E]ach excepted employee who is required to perform work during a covered lapse in appropriations[2] shall be paid for such work, at the employee’s standard rate of pay, at the earliest date possible after the lapse in appropriations ends, regardless of scheduled pay dates, and subject to the enactment of appropriations Acts ending the lapse. 31 U.S.C. § 1341(c)(2) (footnote added). The amendment is commonly referred to as the Government Employees Fair Treatment Act of 2019 (GEFTA), Pub. L. No. 116-1, 133 Stat. 3 (2019). The knowing or willful violation of the ADA is punishable by a fine of “not more than $5,000” or imprisonment “for not more than 2 years, or both.” 31 U.S.C. § 1350. And federal employees who violate the ADA “shall be subject to appropriate administrative discipline including, when circumstances warrant, suspension from duty without pay or removal from office.” 31 U.S.C. § 1349(a). Defendant separately has obligations to its employees pursuant to the FLSA, which governs minimum wage and overtime wage compensation for certain employees. 3 See 29 U.S.C. § 213 (identifying categories of exempt employees). The FLSA requires that the government “pay to each of [its] employees” a minimum wage. 29 U.S.C. § 206(a). Pursuant to the FLSA, the government also must compensate employees for hours worked in excess of a forty-hour workweek “at a rate not less than one and one-half times the regular rate at which [they are] employed.” 29 U.S.C. § 207(a)(1). Although the text of the statute does not specify the date on which wages must be paid, courts have held that employers are required to pay these wages on the employee’s next regularly scheduled payday. See Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697 , 707 (1945); Biggs v. Wilson, 1 F.3d 1537 , 1540 (9th Cir. 1993). If an employer violates the FLSA’s pay provisions, the employer is “liable to the . . . employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be.” 29 U.S.C. § 216(b). The employer may also be liable “in an additional equal amount as liquidated damages,” id., unless “the employer shows to the satisfaction of the court that the act or omission . . . was in good faith, and that [the employer] had reasonable grounds for believing that his act or omission was not a violation of the [FLSA],” 29 U.S.C. § 260. 2 The statute defines “covered lapse in appropriations” to mean “any lapse in appropriations that begins on or after December 22, 2018.” 31 U.S.C. § 1341(c)(1)(A). 3 The FLSA initially applied only to the private sector when enacted in 1938, but was amended to cover public employees in 1974. See Fair Labor Standards Amendments of 1974, Pub. L. No. 93-259, 88 Stat. 55 (1974). 4  B. The Court’s Reasoning in Martin Applies In its motion to dismiss, defendant first argues that plaintiffs’ complaint should be dismissed for failure to state a claim because the agencies for which appropriations lapsed on December 22, 2018, were prohibited by the ADA from paying their employees—even excepted employees who were required to work. See ECF No. 23 at 12-14. This mandate, in defendant’s view, means that defendant cannot be held liable for violating its obligations under the FLSA. See id. Defendant argues: When Congress criminalized payments during an appropriations lapse, it plainly precluded payments on the schedule plaintiffs assert is required by the FLSA. Federal officials who comply with that criminal prohibition do not violate the FLSA, and Congress did not create a scheme under which compliance with the [ADA] would result in additional compensation as damages to federal employees. Id. at 13. The court has previously ruled on the intersection of the ADA and the FLSA in the context of a lapse in appropriations. See Martin v. United States, 130 Fed. Cl. 578 (2017). In Martin, plaintiffs were “current or former government employees who allege[d] that they were not timely compensated for work performed during the shutdown, in violation of the [FLSA].” Id. at 580 (citing 29 U.S.C. § 201 et seq.). The plaintiffs in Martin alleged the right to liquidated damages with regard to both the government’s failure to timely pay minimum wages and its failure to pay overtime wages. See id. In its motion for summary judgment, the government argued that “it should avoid liability under the FLSA for its failure to [pay plaintiffs on their regularly scheduled pay days during the shutdown] because it was barred from making such payments pursuant to the ADA.” See id. at 582. The government summarized its argument in Martin as follows: The FLSA and the Anti-Deficiency Act appear to impose two conflicting obligations upon Federal agencies: the FLSA mandates that the agencies “shall pay to each of [its] employees” a minimum wage, 29 U.S.C. § 206(a) (emphasis added), which has been interpreted by the courts to include a requirement that the minimum wage be paid on the employees’ next regularly scheduled pay day, see Brooklyn Savings Bank v. O’Neil, 324 U.S. 697 , 707 n.20 [ 65 S. Ct. 895 , 89 L. Ed. 1296 ] (1945); Biggs v. Wilson, 1 F.3d 1537 , 1540 (9th Cir. 1993), and the [ADA] mandates that “[a]n officer or employee of the United States Government . . . may not . . . make or authorize an expenditure . . . exceeding an amount available in an appropriation or fund for the expenditure . . . .” 31 U.S.C. § 1341(A)(1)(A) (emphasis added). Thus, when Federal agencies are faced with a lapse in appropriations and 5  cannot pay excepted employees on their next regularly scheduled payday, the question arises of which statutory mandate controls. Id. at 582-83 (quoting defendant’s motion for summary judgment) (alterations in original). After reviewing applicable precedent and persuasive authority, the court concluded that “the issue is more complex than simply a choice between whether the FLSA or the ADA controls.” Id. at 583. In the court’s view: the appropriate way to reconcile the [ADA and the FLSA] is not to cancel defendant’s obligation to pay its employees in accordance with the manner in which the FLSA is commonly applied. Rather, the court would require that defendant demonstrate a good faith belief, based on reasonable grounds, that its actions were appropriate. As such, the court will proceed to analyze this case under the construct of the FLSA, and evaluate the existence and operation of the ADA as part of determining whether defendant met the statutory requirements to avoid liability for liquidated damages. Id. at 584. The court noted that plaintiffs’ claims survived a motion to dismiss because they had “alleged that defendant had failed to pay wages” on plaintiffs’ “next regularly scheduled payday.” Id. at 584. On summary judgment, the court concluded that plaintiffs had proven this claim. See id. The court then concluded that the evidence supported an award of liquidated damages because the government failed to satisfy the court that it acted in good faith and on reasonable grounds when it failed to make the payments required under the FLSA. 4 See id. at 585-86. Both parties acknowledge that the plaintiffs in Martin were “situated similarly to plaintiffs here.” ECF No. 23 at 13 (defendant’s motion to dismiss); see also ECF No. 26 at 7 (“The [p]laintiffs here have pled precisely the same type of claim presented in Martin, i.e., that they were non-exempt employees who worked for the federal government during the shutdown and were not paid on their regular pay dates.”). In addition, plaintiffs here, like the plaintiffs in Martin, have alleged that “[d]efendant conducted no analysis to determine whether its failure to pay” plaintiffs “on their 4 In Martin, the defendant also argued that it should avoid liability for liquidated damages with regard to overtime wages due to its inability to calculate the correct amounts due. See Martin v. United States, 130 Fed. Cl. 578 , 586-87 (2017). This argument was based on a bulletin from the Department of Labor, and involves an issue that has not been raised in the present case. The absence of this argument, however, has no bearing on the application of the court’s reasoning in Martin with regard to the structure of the proper analysis in this case. 6 regularly scheduled payday” during the shutdown “complied with the FLSA.” ECF No. 1 at 8. In its motion to dismiss, defendant does not dispute plaintiffs’ allegations that they were required to work during the shutdown, or that the plaintiffs were not paid during that time due to the lapse in appropriations. See ECF No. 23. Defendant characterizes the issue now before the court as “whether plaintiffs have stated a claim for liquidated damages under the [FLSA] notwithstanding the provisions of the [ADA].” Id. at 7. In arguing its position, defendant reiterates the arguments advanced in Martin, but does not present any meaningful distinction between the posture of the Martin plaintiffs and the plaintiffs here. Instead, it acknowledges that “[t]his Court in Martin v. United States concluded that plaintiffs situated similarly to plaintiffs here could recover liquidated damages under the FLSA,” but states that it “respectfully disagree[s] with that holding.” Id. at 13-14. Notwithstanding defendant’s disagreement, the court continues to believe that the framework it set out in Martin is appropriate and applies here. 5 As it did in Martin, “the court will proceed to analyze this case under the construct of the FLSA, and evaluate the existence and operation of the ADA as part of determining whether defendant met the statutory requirements to avoid liability for liquidated damages.” 6 Martin, 130 Fed. Cl. at 5 Defendant also argues that its obligations under the FLSA are limited by the ADA because “a congressional payment instruction to an agency must be read in light of the [ADA].” ECF No. 23 at 16. In support of this argument, defendant cites to Highland Falls-Fort Montgomery Cent. Sch. Dist. v. United States, 48 F.3d 1166 , 1171 (Fed. Cir. 1995). See id. at 16-17. In Highland-Falls, plaintiffs challenged the Department of Education’s (DOE) method for allocating funds under the Impact Aid Act. Highland-Falls, 48 F.3d at 1171 . The United States Court of Appeals for the Federal Circuit found, however, that the DOE’s “approach was consistent with statutory requirements.” Id. The case did not address FLSA claims, and found that the DOE’s approach “harmonized the requirements of the Impact Aid Act and the [ADA].” See id. In the court’s view, the Federal Circuit’s decision in Highland-Falls does not alter the analysis in this case. The United States District Court for the District of Columbia’s combined decision in National Treasury Employees Union v. Trump, Case No. 19-cv-50 and Hardy v. Trump, Case No. 19-cv-51, 444 F. Supp. 3d 108 (2020), discussed by defendant in one of its supplemental filings, see ECF No. 43, is likewise unhelpful. Although it involved facts that arose from the same 2018 lapse in appropriations, the decision focuses almost exclusively on an analysis of whether plaintiffs’ claims were moot, rather than on the operation of the ADA. 6 The parties both claim that the Supreme Court of the United States’ decision in Maine Community Health, 140 S. Ct. 1308 , supports their position in this case. See ECF No. 51, ECF No. 53. Maine Community Health does not address the FLSA, and only includes a limited discussion of the ADA. See Maine Cmty. Health, 140 S. Ct. at 1321-22 . Accordingly, the decision does not dictate the outcome here. To the extent that the case informs the present discussion, however, it tends to support plaintiffs. In the opinion, the Supreme Court held that “the [ADA] confirms that Congress can create obligations without contemporaneous funding 7 584. The court will, of course, consider the GEFTA amendment to the ADA as part of its analysis. C. Waiver of Sovereign Immunity Before analyzing the sufficiency of plaintiffs’ allegations, the court must address defendant’s contention that plaintiffs’ claims are barred by the doctrine of sovereign immunity. In its motion to dismiss, defendant correctly notes that “‘[a] waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text, and will not be implied.’” ECF No. 23 at 19 (quoting Lane v. Pena, 518 U.S. 187 , 192 (1996)). And that waiver “‘will be strictly construed, in terms of its scope, in favor of the sovereign.’” Id. (quoting Lane, 518 U.S. at 192). Defendant concedes that the FLSA includes a waiver of sovereign immunity, but argues that the claims made by plaintiffs in this case fall outside the scope of that waiver. See id.; see also King v. United States, 112 Fed. Cl. 396 , 399 (2013) (stating that “there is no question that sovereign immunity has been waived under the FLSA”). Defendant argues that the FLSA “does not require that employees be paid on their regularly scheduled pay date or make damages available when compensation is not received on a pay date.” ECF No. 25 at 19. As a result, defendant contends, the scope of the FLSA’s waiver of sovereign immunity does not extend to the category of claims alleging a FLSA violation because wages were not paid as scheduled, such as plaintiffs’ claims in this case. See id. at 19-21. According to defendant, the GEFTA confirms its long-standing belief that the government’s payment obligations under the FLSA are abrogated by a lack of appropriations: The [GEFTA] provides that “each excepted employee who is required to perform work during a . . . lapse in appropriations shall be paid for such work, at the employee’s standard rate of pay, at the earliest date possible after the lapse in appropriations ends, regardless of scheduled pay dates.” Pub. L. No. 116-1, 133 Stat. 3. Congress has thus spoken directly to the question of when compensation should be paid. There can be no basis for inferring that compensation made in accordance with that explicit directive subjects the United States to liquidated damages. Id. at 20-21. sources,” and concludes that “the plain terms of the [statute at issue] created an obligation neither contingent on nor limited by the availability of appropriations or other funds.” Id. at 1322, 1323. Applied here, this conclusion suggests that the defendant can incur an obligation to pay plaintiffs pursuant to the normal operation of the FLSA even when funding is not available. 8  Defendant also asserts that the scope of its waiver of sovereign immunity for FLSA claims does not cover the claims asserted here. See ECF No. 30 at 13. It argues, without citation to any authority, that: when the United States does not pay employees on their regularly scheduled paydays during a lapse in appropriations, a[] FLSA cause of action against the United States (1) does not accrue because the United States has not waived sovereign immunity for money damages resulting from the delayed payment of wages during a funding gap, and (2) cannot accrue because the [ADA] controls when and at what rate of pay the government must pay employees following a funding gap. Id. The court disagrees. The claims brought by plaintiffs in this case are “garden variety” minimum wage and overtime claims under the FLSA. See ECF No. 26 at 16-17; see also ECF No. 1 at 7-10. Because the FLSA does not specify when such claims arise, courts have interpreted the statute to include a requirement that employers make appropriate wage payments on the employee’s next regularly scheduled payday. See Brooklyn Sav. Bank, 324 U.S. at 707 ; Biggs, 1 F.3d at 1540 . Contrary to defendant’s suggestion, the court is unpersuaded that this judicially-imposed timing requirement transforms ordinary FLSA claims into something analytically distinct, and beyond the scope of the statute’s waiver of sovereign immunity. Accordingly, the court finds that defendant has waived sovereign immunity as to plaintiffs’ claims, as it has with all FLSA claims, and the court will review the sufficiency of plaintiffs’ allegations as it would in any other FLSA case. D. Plaintiffs State a Claim for FLSA Violations As noted above, the FLSA requires that the government “pay to each of [its] employees” a minimum wage. 29 U.S.C. § 206(a). Pursuant to the FLSA, the government also must compensate employees for hours worked in excess of a forty-hour workweek “at a rate not less than one and one-half times the regular rate at which [they are] employed.” 29 U.S.C. § 207(a)(1). And although the text of the statute does not specify the date on which wages must be paid, courts have held that employers are required to pay these wages on the employee’s next regularly scheduled payday. See Brooklyn Sav. Bank, 324 U.S. at 707 ; Biggs, 1 F.3d at 1540 . In their complaint, plaintiffs allege that during the lapse in appropriations, they and all putative class members were excepted employees “were forced to continue to perform their duties designated as essential, without the receipt of their normally 9 scheduled wages.” 7 ECF No. 1 at 3. Plaintiffs allege specific facts demonstrating how the allegations apply to each named plaintiff. See id. at 4-5. Defendant does not contest any of these allegations, and in fact, concedes that “plaintiffs [were] employees of agencies affected by the lapse in appropriations,” and that “plaintiffs were paid at the earliest possible date after the lapse in appropriations ended.” ECF No. 23 at 12, 13. Defendant also admits that “[p]laintiffs are federal employees who performed excepted work during the most recent lapse in appropriations.” Id. at 15. In short, defendant does not claim that plaintiffs are not entitled to payment under the FLSA, but instead argues that it “fully complied with its statutory obligations to plaintiffs.” Id. at 16. The court finds that, presuming the facts as alleged in the complaint and drawing all reasonable inferences in their favor, plaintiffs have stated a claim for relief under the FLSA. See Cary, 552 F.3d at 1376 (citing Gould, 935 F.2d at 1274 ). E. Liquidated Damages Defendant insists that its failure to pay plaintiffs was a decision made in good faith, in light of the ADA. See ECF No. 30 at 14-15. It further urges the court to find that its good faith is so clear that the recovery of liquidated damages should be barred at this stage in the litigation. See id. at 14-18. But as the court held in Martin: [I]t would be inappropriate to determine, on motion to dismiss, whether the government had reasonable grounds and good faith. It may well be that the government can establish these defenses, but its opportunity to do so will come later on summary judgment or at trial. Moreover, even if the court 7 Defendant argues that “[t]o the extent that plaintiffs (1) claim any FLSA violation for failing to pay FLSA minimum wages or overtime wages to FLSA-exempt employees, or (2) welcome FLSA-exempt employees to join their collective, those claims must be dismissed.” ECF No. 23 at 15 n.3. In support of this statement, defendant cites to Jones v. United States, 88 Fed. Cl. 789 (2009). See id. In Jones, the court stated: “The ‘precise question at issue’ is whether Section 111(d) of the [Aviation and Transportation Security Act] exempts [Transportation Security Administration (TSA)] from compliance with the FLSA when establishing overtime compensation for security screeners. Because we find that the plain language of Section 111(d) is unambiguous, we conclude that TSA need not comply with the FLSA.” 88 Fed. Cl. at 792 (emphasis added). This case is not binding precedent, and appears to be limited in application to security screeners. Moreover, plaintiffs do not allege that any putative class member is a TSA employee. See ECF No. 1 at 10. Because the court’s decision in Jones does not hold that all TSA employees are necessarily FLSA-exempt, and because neither plaintiffs nor defendant has alleged that any putative class member is a TSA employee, the court will not address this argument at this time. 10  were to decide that a liquidated damages award is warranted, additional factual determinations remain to be made as to which employees, if any, are entitled to recover, and damages, if any, to which those employees would be entitled. Martin v. United States, 117 Fed. Cl. 611 , 627 (2014). Accordingly, the court declines to rule at this time on the issue of whether defendant can establish a good faith defense against liability for liquidated damages in this case. IV. Conclusion Accordingly, for the foregoing reasons: (1) Defendant’s motion to dismiss, ECF No. 23, is DENIED; (2) On or before February 1, 2021, defendant is directed to FILE an answer or otherwise respond to plaintiffs’ complaint; and (3) On or before February 1, 2021, the parties are directed to CONFER and FILE a joint status report informing the court of their positions on the consolidation of this case with any other matters before the court. IT IS SO ORDERED. s/Patricia E. Campbell-Smith PATRICIA E. CAMPBELL-SMITH Judge 11

2020-12-02 13:02:53.964348+00

https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2010cv0157-231-0

In the United States Court of Federal Claims WILLIAM KOOPMANN, et al., Plaintiffs, No. 09-cv-333 T v. Filed: December 1, 2020 THE UNITED STATES, Defendant. PETER SOFMAN, et al., Plaintiffs, No. 10-cv-157 T v. Filed: December 1, 2020 THE UNITED STATES, Defendant. MEMORANDUM AND ORDER Pending before the Court is Defendant’s “Motion to Dismiss Claims of Forty-Six Individual Plaintiffs for Want of Prosecution” pursuant to Rule 41(b) of the Rules of the United States Court of Federal Claims (Rules). See ECF Nos. 319 (Koopmann) & 199 (Sofman). Specifically, Defendant argues that this Court should dismiss the claims of certain plaintiffs for failure to prosecute his or her claims because each failed to comply with the Court’s April 28, 2020 (ECF Nos. 143 (Koopmann) & 117 (Sofman)) Orders, and May 11, 2020 (ECF Nos. 185 (Koopmann) & 132 (Sofman)) Orders, which required each plaintiff named in the Sofman and Koopmann complaints to submit verified contact information to the Court on or before July 1, 2020. On July 23, 2020, the Court received a Response from Plaintiffs Sofman, Koopmann, and Fetzer who have formed an informal “Plaintiff Committee” to coordinate amongst the various plaintiffs, all acting pro se, in the above captioned actions. See Response (ECF Nos. 336 (Koopmann) & 204 (Sofman)) at 2. The Response also stated that the Plaintiff Committee believed the plaintiffs identified by Defendant’s Motion to Dismiss failed to respond to this Court’s orders due to: (1) technology issues, (2) potential misinterpretation of orders, and (3) disabilities related to age and medical conditions. See Response at 1. Since Defendant filed the present Motion to Dismiss, several plaintiffs identified in Defendant’s Motion submitted the information required by the Court’s earlier orders or otherwise took steps reflecting a desire to continue litigating their claims against the United States, and the Defendant accordingly withdrew its Motion to Dismiss as against those plaintiffs. See Defendant’s Notice of Withdrawal of Motion to Dismiss for Want of Prosecution with Respect to Plaintiffs Atkins, DeCoudreaux, Hathaway, and Grosswiler (ECF Nos. 368 (Koopmann) & 230 (Sofman)) (Def. Notice of Withdrawal). However, eighteen (18) plaintiffs still failed to submit any response and have not responded to any orders of this Court; Defendant continues to seek the dismissal of their claims for want of prosecution. See id. at 3. Specifically, the Defendant argues that the Court should dismiss claims in both Koopmann and Sofman by (1) Charles H. George and (2) Allen E. Snook; and claims in Koopmann by (3) Brian Leiding, (4) James B. Brooks, Sr., (5) Douglas R. Lund, (6) David S. Meik, (7) Joseph L. Galbraith, (8) William Mullen, (9) Magnus R. Hansen, (10) Richard E. Newton, (11) Wayne A. Jackson, (12) William Royall, Jr., (13) Stephen F. 2 Jakubowski, (14) Robert C. Seits, (15) Gerald W. Johnson, (16) Robert S. Tanons, (17) John Joyce, and (18) George Williams (collectively, the Non-Responsive Plaintiffs). See id. For the reasons stated below, Defendant’s Motion is GRANTED. The claims of the eighteen (18) Non-Responsive Plaintiffs are dismissed. BACKGROUND These cases involve a group of over 160 retired United Airlines pilots who allege that they are owed a partial refund of FICA taxes paid on non-deferred compensation benefits, where the obligation to continue paying plaintiffs such benefits was discharged as a consequence of United’s bankruptcy. All plaintiffs are acting pro se, and none of the plaintiffs are attorneys or licensed to practice law. See Generally May 1, 2020 Joint Status Report (ECF Nos. 147 (Koopmann) & 118 (Sofman)) at 7 (outlining the procedural history of this litigation). I. Procedural History in Koopmann On May 26, 2009, another retired United pilot, William Koopmann, filed a lawsuit in the United States Court of Federal Claims against the United States similarly seeking, inter alia, a refund of the FICA taxes paid, relating to his retirement benefits. See Koopmann v. United States, No. 09-333, Complaint (ECF No. 1) (K, Compl.). All plaintiffs are proceeding pro se, and only Mr. Koopmann signed the Complaint. Id. Mr. Koopmann, who has vigorously prosecuted his case in good faith and with excellent intentions, but is not an attorney, originally purported to represent over 160 other retired United pilots, none of whom signed the Complaint. Id. On July 27, 2009, Defendant moved for a more definite statement, requesting, inter alia, that the Court strike all the purported plaintiffs, other than Mr. Koopmann from the complaint. See generally Defendant’s First Motion for a More Definite Statement (ECF No. 7). On November 3 18, 2009, Judge Block dismissed from this suit the other individuals named by Mr. Koopmann’s Complaint. Koopmann v. United States, No. 09-333 T, 2009 WL 4031119 , at 1 (Fed. Cl. Nov. 18, 2009). On May 26, 2010, Judge Wolski, who was newly assigned to this case, vacated the portion of the November 18, 2009 Order dismissing the individuals other than Mr. Koopmann from this suit. See May 26, 2010 Order (ECF No. 62). Subsequently, those individuals filed “Plaintiff Information Sheets,” which Judge Wolski construed liberally as requests to join the case and adopted the factual and legal allegations in the complaints of the lead plaintiff, Mr. Koopmann. See Plaintiff Information Sheets (ECF No. 61); see also May 26, 2010 Order (ECF No. 62). However, these “information sheets” did not contain all the information required by Rule 9(m) of the Rules of the United States Court of Federal Claims, which mandate that a claim for a tax refund include, inter alia, a statement identifying various information regarding the individual’s tax refund. Accordingly, on February 17, 2011, Defendant renewed its Motion for a More Definite Statement and again requested that the Court order all plaintiffs named in Mr. Koopmann’s Complaint provide the information required by Rule 9(m). See generally Def.’s Second Mot. for a More Definite Statement (ECF No. 72) at 1-2; See also Def. Reply in Support of Second Mot. for a More Definite Statement (ECF No. 74) at 3-4. Mr. Koopmann filed a response on behalf of himself, arguing that Defendant had sufficient information to assert an informed defense and arguing that if information is missing “Plaintiffs will in [his] opinion, be fully agreeable to provide the missing information.” Koopmann Resp. to Def.’s Second Mot. for a More Definite Statement (ECF No. 73) at 2. The other purported plaintiffs did not respond to Defendant’s Motion. 4  II. Procedural History in Sofman On March 12, 2010, Mr. Sofman, a retired United pilot who was also a purported plaintiff in the Koopmann suit, filed a nearly identical suit naming fifty-two (52) retired United pilots. Sofman v. United States, No. 10-157, Complaint (ECF No. 1) (S, Compl.). Many, but not all, of the plaintiffs who joined Koopmann by filing “Plaintiff Information Sheets” also joined Sofman in a similar manner. Id. On May 11, 2010, Defendant also filed a Motion for a More Definite Statement as to the Plaintiffs’ claims in Sofman. See ECF No. 76. Again, none of the Plaintiffs subject to the present Motion to Dismiss responded to Defendant’s Motion for a More Definite Statement. III. Transfer to the Undersigned Judge The above-captioned actions were transferred to the undersigned judge on April 10, 2020. See ECF Nos. 135 (Koopmann), 113 (Sofman). On April 28, 2020, this Court ordered Plaintiffs in each of the above-referenced cases to “file a notice verifying his or her current contact information—including (1) name, (2) current e-mail address (if plaintiff uses email), (3) current mailing address, and (4) current telephone number.” April 28, 2020 Order (ECF Nos. 143 (Koopmann), 117 (Sofman)). Furthermore, despite the Non-Responsive Plaintiffs’ pro se status, the Court attached to its Order an e-notification consent form so that all Plaintiffs could receive notifications via the Court’s electronic filing system to ensure each Plaintiff, should they choose to do so, could receive electronic notice of this Court’s orders pertaining to their respective claims. See E-Notification Consent Form (ECF Nos. 143-1 (Koopmann) & 117-1 (Sofman)). The Court additionally directed the Clerk of Court to mail these orders to each plaintiff listed on the 5 complaints in Koopmann and Sofman. See May 7, 2020 Transcript (ECF Nos. 219 (Koopmann) & 146 (Sofman)) (May 7 Tr.) at 43. On May 7, 2020, this Court held a telephonic status conference, which was attended by plaintiffs Peter Sofman, William Koopmann, Wesley Fetzer, and William Brashear, Defendant’s counsel, and non-party Denis O’Malley. See generally May 7 Tr. at 1. During the status conference, Mr. Fetzer informed the Court that several plaintiffs had experienced difficulties electronically filing their updated contact information in accordance with the Court’s April 28 Order. See id. at 50-58. Accordingly, to accommodate for the issues Mr. Fetzer raised, on May 11, 2020, the Court sua sponte extended the Plaintiffs’ filing deadline until July 1, 2020. See May 11, 2020 Order (ECF Nos. 185 (Koopmann) & 132 (Sofman)). That same day, this Court ordered Defendant to file any updated motions for a more definite statement. See Order (ECF Nos. 187 (Koopmann) & 133 (Sofman)). The Court also ordered Plaintiffs to file any responses to Defendant’s updated motion for a more definite statement by July 2, 2020 and stated the following: Plaintiffs may collectively submit a Response to Defendant’s Motion in a single filing provided that each individual Plaintiff who joins such a Response must sign at the end of the document with “s/[first and last name]” or via handwritten signature or a copy thereof. Any Plaintiff may alternatively submit an individual Response to Defendant’s Motion. However, if a Plaintiff fails to submit a Response – either by joining a collective Response via signature or by filing an individual Response – they will waive any right to respond to or oppose Defendant’s Motion. Id. at 2 n.1. On June 4, 2020, Defendant timely moved for a more definite statement for a third time, again requesting that this Court order Plaintiffs to file the information required by Rule 9(m). See Def.’s Mot. for More Definite Statement as to all plaintiffs except Koopmann, Balestra, Bates & Brashear (ECF Nos. 252 (Koopmann) & 157 (Sofman)). 6  To date, it appears that eighteen (18) Plaintiffs have still not responded to this Court’s April 28, 2020 Order (ECF Nos. 143 (Koopmann) & 117 (Sofman)), to its May 11, 2020 Order (ECF Nos. 185 (Koopmann) & 132 (Sofman)), to Defendant’s Motions for a More Definite Statement (ECF Nos. 252 (Koopmann) & 157 (Sofman)), to Defendant’s Motion to Dismiss Claims of Forty- Six Individual Plaintiffs for Want of Prosecution (ECF Nos. 319 (Koopmann) & 199 (Sofman)), or to any other deadlines in this case since filing their respective “Plaintiff Information Sheets.” DISCUSSION Pursuant to Rule 41(b), a court may dismiss a case against any plaintiff for the failure to prosecute his claim. RCFC 41(b); see also Claude E. Atkins Enters., Inc., 899 F.2d 1180 , 1183- 84 (Fed. Cir. 1990) (finding dismissal proper when a party failed to comply with a court’s order). Specifically, Rule 41(b) provides that “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, the court may dismiss on its own motion or the defendant may move to dismiss the action or any claim against it.” RCFC 41(b); see also Link v. Wabash R.R. Co., 370 U.S. 626 , 629 (1962) (“The authority of a federal trial court to dismiss a plaintiff’s action with prejudice because of his failure to prosecute cannot seriously be doubted.”). Further, Rule 83.1(c)(3)(C) requires plaintiffs, including those acting pro se, to “promptly file with the clerk and serve on all other parties a notice of any change in [their] contact information.” RCFC 83.1(c)(3)(C); see also RCFC 83.1(a)(3) (imposing the requirement on pro se litigants). This Court ordered Plaintiffs to verify their “current contact information—including (1) name, (2) current e-mail address (if plaintiff uses email), (3) current mailing address, and (4) current telephone number” by July 1, 2020. See April 28, 2020 Order (ECF Nos. 143 (Koopmann) & 117 (Sofman)); May 11, 2020 Order (ECF Nos. 185 (Koopmann) & 132 (Sofman)). Even after 7 the July 1, 2020 deadline, this Court continued to accept responses and Defendant has withdrawn its claims against any plaintiff who has submitted any filing to the Court in the interim. See Def. Notice to Withdraw. Over five months have passed since the July 1, 2020 deadline expired, and the eighteen plaintiffs subject to Defendant’s Motion still have yet to respond or submit any filing or correspondence to this Court in any respect. Indeed, none of the eighteen plaintiffs subject to Defendant’s Motion to Dismiss have filed responses to this Motion. Moreover, none of these eighteen plaintiffs responded to the Defendant’s Motions for More Definite Statement, to which the Court expressly ordered them to respond to by July 1, 2020. See Order (ECF Nos. 187 (Koopmann) & 133 (Sofman)). This Court has tried to reach the eighteen plaintiffs repeatedly; despite their pro se status, the Non-Responding Plaintiffs’ failure to respond to this Court’s Orders and comply with Rule 83.1 is sufficient reason to dismiss their claims for failure to prosecute. See Carpenter v. United States, 38 Fed. Cl. 576 , 577 (1997) (dismissing for failure to prosecute after plaintiff failed to respond to defendant’s motions and court’s order); see also Bloomfield v. Wurtzberger, No. 9:09-CV-619 GLS/RFT, 2011 WL 281026 , at *4 (N.D.N.Y. Jan. 3, 2011) (dismissing for failure to update contact information), report and recommendation adopted, No. 9:08-CV-619 GLS RFT, 2011 WL 283280 (N.D.N.Y. Jan. 26, 2011). Though other plaintiffs have proffered possible justifications for why the Non-Responsive Plaintiffs failed to respond or comply with this Court’s Orders, none of those plaintiffs are authorized to speak for, or file responses on behalf of, the Non-Responsive Plaintiffs. See RCFC 83.1(a)(3) (prohibiting an individual, who is not an attorney, from representing any other person, except one’s immediate family or oneself); see also Chief War Eagle Family Ass’n & Treaty of 1837 & 1917 Reinstatement v. United States, 81 Fed. Cl. 234 (2007) (holding that a pro se plaintiff, who was not an attorney, could not represent named plaintiffs who were not members of his 8 immediate family); Koopmann v. United States, No. 09-333 T, 2009 WL 4031119 , at *1 (Fed. Cl. Nov. 18, 2009) (holding that Mr. Koopmann cannot represent his fellow retired pilots where he is not an attorney admitted to practice in this court) (citing Fuselier v. United States, 63 Fed. Cl. 8 , 11 (2004)). Further, it is undisputed that none of these pro se plaintiffs are attorneys or licensed to practice law. See generally May 1, 2020 Joint Status Report at 7-8. This underscores the issue at hand—the Non-Responsive Plaintiffs have not responded to a Court order in this case in over ten years, and other pro se plaintiffs cannot appear or litigate on their behalf. See Cartagena v. Centerpoint Nine, Inc., 303 F.R.D. 109 , 112 (D.D.C. 2014) (“A lengthy period of inactivity may also be enough to justify dismissal under Rule 41(b).” (internal citation and quotation omitted)); Malone v. HSBC Mortg. Corp. USA, No. 10 CIV. 8670 KBF, 2012 WL 406903 at *3 (S.D.N.Y. Feb. 7, 2012) (dismissing for failure to prosecute where plaintiff did not “take[] any affirmative steps to participate in t[hat] action” for five months); Ahmed v. I.N.S., 911 F. Supp. 132 , 134 (S.D.N.Y. 1996) (dismissing for failure to prosecute where plaintiff did not file anything for the three years since the first filing of his complaint). The Non-Responsive Plaintiffs have simply failed to prosecute their case in any respect. CONCLUSION For the reasons set forth above, this Court GRANTS Defendant’s “Motion to Dismiss Claims of . . . Individual Plaintiffs for Want of Prosecution” (Koopmann ECF No. 319, Sofman ECF No. 199) pursuant to Rule 41(b). The claims of the following Non-Responsive Plaintiffs are DISMISSED WITH PREJUDICE unless otherwise noted: (1) Charles H. George and (2) Allen E. Snook 1 in both Koopmann and Sofman; and (3) Brian Leiding, (4) James B. Brooks, Sr., (5) 1 The Court understands that plaintiff Allen E. Snook may have recently passed away. Therefore, the dismissal of Mr. Snook’s claims is without prejudice if, in accordance with Rule 25, a proper party files a motion to substitute within ninety (90) days of this Memorandum and Order. 9 Douglas R. Lund, (6) David S. Meik, (7) Joseph L. Galbraith, (8) William Mullen, (9) Magnus R. Hansen, (10) Richard E. Newton, (11) Wayne A. Jackson, (12) William Royall, Jr., (13) Stephen F. Jakubowski, (14) Robert C. Seits, (15) Gerald W. Johnson, (16) Robert S. Tanons, (17) John Joyce, and (18) George Williams in Koopmann. The Clerk of Court is directed to adjust the docket in accordance with this Memorandum and Order. IT IS SO ORDERED. s/Eleni M. Roumel ELENI M. ROUMEL Chief Judge Dated: December 1, 2020 Washington, D.C. 10

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**************************************************************** The ‘‘officially released’’ date that appears near the beginning of this opinion is the date the opinion was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. This opinion is subject to revisions and editorial changes, not of a substantive nature, and corrections of a technical nature prior to publication in the Connecticut Law Journal. ****************************************************************  IN RE MIRACLE C.* (AC 44006) Alvord, Cradle and Sullivan, Js. Syllabus The respondent mother appealed from the judgment of the trial court termi- nating her parental rights with respect to her minor child. She claimed that the court erroneously concluded that the Department of Children and Families had made reasonable efforts at reunification pursuant to statute (§ 17a-112 (j) (1)) because, although the department’s plan was to engage her in dialectical behavioral therapy, it failed to inform her that she should have engaged in that therapy. The court also found, pursuant to § 17a-112 (j) (1), that the mother was unable or unwilling to benefit from reunification efforts. Held that because the respondent mother, who did not challenge on appeal the trial court’s finding that she was unable or unwilling to benefit from reunification efforts, chal- lenged only one of the two separate and independent bases for upholding the court’s determination that the requirements of § 17a-112 (j) (1) had been satisfied, there existed a separate and independent basis for uphold- ing the court’s determination, and, therefore, there was no practical relief that could be afforded to her; accordingly, the appeal was dismissed as moot. Argued October 6—officially released December 1, 2020** Procedural History Petition by the Commissioner of Children and Fami- lies to terminate the respondents’ parental rights with respect to their minor child, brought to the Superior Court in the judicial district of New Haven, Juvenile Matters, where the matter was tried to the court, Mar- cus, J.; judgment terminating the respondents’ parental rights, from which the respondent mother appealed to this court. Appeal dismissed. David J. Reich, for the appellant (respondent mother). Renée Bevacqua Bollier, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Benjamin Zivyon, Stephen G. Vitelli, and Evan O’Roark, assistant attorneys general.  Opinion PER CURIAM. The respondent mother, Priscilla W., appeals from the judgment of the trial court terminating her parental rights with respect to her minor child, M.1 On appeal, she claims that the court erroneously concluded that the Department of Children and Fami- lies (department) had made reasonable efforts at reuni- fication, pursuant to General Statutes § 17a-112 (j) (1). The respondent does not claim that the court erred in its additional conclusion that she was unable or unwill- ing to benefit from reunification efforts. Because the respondent challenges only one of the two bases for the court’s determination that § 17a-112 (j) (1) had been satisfied, we conclude that the respondent’s appeal is moot.2 The following facts, which were found by the trial court, and procedural history are relevant to this appeal. The child was born at Yale New Haven Hospital (hospi- tal) in 2018. Shortly after the child was born, the hospital made a referral to the department. The referral was made on the basis of, inter alia, the respondent’s signifi- cant mental health history, including past diagnoses of adjustment disorder with disturbance of conduct, bipolar disorder, depression, oppositional defiance dis- order, post-traumatic stress disorder, and anxiety. At the time of the child’s birth, the respondent had not been engaged in any mental health treatment since 2013. The respondent also was involved in two domestic violence incidents with the child’s father. See footnote 1 of this opinion. The first occurred in April, 2017, and the second occurred on January 4, 2018, while the respondent was pregnant with the child. Despite protec- tive orders protecting the respondent from the child’s father, the respondent planned, upon her discharge from the hospital following the birth of the child, to resume living with the child’s father. On February 5, 2018, the petitioner, the Commis- sioner of Children and Families (commissioner), pursu- ant to General Statutes § 17a-101g, placed a ninety-six hour hold on the child. On February 9, 2018, the commis- sioner filed a motion for an order of temporary custody, which was granted ex parte that same day. Also on February 9, 2018, the commissioner filed a neglect peti- tion. The order of temporary custody was consolidated with the neglect petition. After a hearing on February 23, 2018, the court sustained the order of temporary custody and adjudicated the child neglected. On April 19, 2018, the court committed the child to the custody of the commissioner. The commissioner filed a petition for the termination of the parental rights of the respon- dent on May 7, 2019. Beginning on October 28, 2019, the court, Marcus, J., held a trial on the petition for termination of parental rights. The court rendered judgment terminating the respondent’s parental rights on January 6, 2020.3 The court found in relevant part that (1) the department had made reasonable efforts at reunification and (2) the respondent was unable or unwilling to benefit from those efforts at reunification. The court set forth detailed findings regarding the services offered to the respondent and her level of engagement with and failure to benefit from such ser- vices. Specifically, the court found that despite attending weekly, trauma focused therapy through Inte- grated Wellness with Rachel Forbes, a therapist, from April, 2018 to March, 2019, the respondent made ‘‘little to no progress.’’ The respondent also refused to increase her therapy sessions to twice weekly, as rec- ommended by a psychological evaluation in Novem- ber, 2018.4 The court further found that the respondent exhibited ‘‘extremely dysregulated behavior,’’ including during one incident on July 2, 2018. That day, the department’s social worker had transported the respondent and the child to a doctor’s appointment for the child. After the appointment, the respondent and the social worker dis- agreed about the order of drop-offs. The respondent wanted to be dropped off first, began screaming that she wanted to go home, removed the social worker’s keys from the car’s ignition, and exited the car with the child. The social worker called the police, while the respondent engaged in a tantrum on the side of the road before eventually handing the child to the social worker. In another incident in March, 2019, the respon- dent expressed threats during a therapy session with Forbes and was admitted to the inpatient psychiatric unit at Middlesex Hospital. She was discharged with a recommendation for intensive outpatient treatment and prescribed Seroquel for her diagnosis of bipolar disorder. From March through June, 2019, the court found that the respondent refused to attend either of two different trauma based therapy programs, Yale Intensive Outpa- tient Treatment Program (Yale program) and State Street Counseling, offered by the department. Although the respondent did complete the Yale program in July, 2019, employees of the Yale program reported to the department that the respondent had failed to accept responsibility for her actions and had no understanding why the child remained in the care of the department. Employees of the Yale program prescribed medication to the respondent, but she did not refill the prescription. The department also referred the respondent to a dialec- tical behavioral therapist recommended by the Yale program in September, 2019. Although the mother attended an intake session and her first appointment, she failed to attend her second appointment and told the department that she was not interested in dialectical behavioral therapy. The department also referred the respondent for medication assessment and manage- ment to the Cornell Scott Hill Health Center, but she failed to attend the intake appointment on August 19, 2019. The court found that the respondent and the child’s father ‘‘had an extensive history of domestic violence leading to the issuance of multiple protective orders with the [respondent] listed as the protected person.’’ In light of that history, the department referred the respondent to Family Centered Services for domestic violence services. The social worker from Family Cen- tered Services reported that the respondent had partici- pated in four sessions of a domestic violence program, but she was ‘‘not . . . able to report what was dis- cussed or what she had learned’’ and was ‘‘inconsistent in her focus during sessions, as she was often on the telephone.’’ The court found that three additional domestic violence incidents with the child’s father occurred in February, 2019. The department also referred the respondent for supervised visits and parenting classes. The respondent completed the Therapeutic Family Time program with R Kids in July or August, 2018. The clinician from R Kids noted that the respondent did well with the child in visits but that she needed further mental health treat- ment. The clinician reported that the respondent was unable to appreciate what she did wrong in the July, 2018 roadside tantrum incident with the department’s social worker. In October, 2018, Jewish Family Services performed a reunification assessment, which included supervised visits, conferences with the respondent’s other providers, and a recommendation regarding reunification. Although the supervised visits ordinarily would include parent coaching, the respondent refused to engage in parent coaching, stating that she did not need any parenting advice or support. The clinician did not recommend reunification. The clinician reported, inter alia, that the respondent ‘‘did not understand why domestic violence was an issue nor did she understand safety concerns for [the child] as a result of the signifi- cant continuing domestic violence . . . .’’ The respon- dent’s treatment and service providers, including Forbes and clinicians from Family Centered Services and R Kids, ‘‘expressed hesitation regarding reunifica- tion because of the [respondent’s] emotional volatility, which had not been addressed in therapy or by medi- cation.’’5 The court concluded: ‘‘Based [on] the foregoing, this court finds that [the department] has made reasonable efforts to reunite the [respondent] with [the child]. In addition, the court finds that the [respondent] is unable or unwilling to benefit from those efforts. . . . [The department] provided the [respondent] with timely, necessary, and appropriate referrals and services. The [respondent] either did not engage in the services that were offered to her or when she did engage in treatment she did not benefit from those services as set forth in detail [herein].’’ The respondent appeals from the judgment terminat- ing her parental rights on the sole ground that the court erred in finding that the department had made reason- able efforts at reunification. Specifically, she argues that, although ‘‘[t]he department’s plan was to engage [her] in [dialectical behavioral] therapy in order for [her] to heal from the trauma she experienced as a child and the trauma of the domestic violence she endured from [the child’s] father,’’ the department ‘‘failed to inform her that she should have been engaged in [dialec- tical behavioral] therapy.’’ She maintains that ‘‘[i]t is an injustice for the department to fail to inform [her] that she should have engaged in [dialectical behavioral ther- apy] and then prevail on [its] termination of parental rights case.’’ The commissioner argues that the respondent’s appeal should be dismissed as moot because she failed to challenge the court’s finding that she was unable or unwilling to benefit from the department’s reunification efforts. Thus, the commissioner maintains that there is no relief this court can afford the respondent. We agree with the commissioner that the respondent’s appeal is moot because there is no practical relief this court can afford to her on appeal. ‘‘Mootness raises the issue of a court’s subject matter jurisdiction and is therefore appropriately considered even when not raised by one of the parties. . . . Moot- ness is a question of justiciability that must be deter- mined as a threshold matter because it implicates [a] court’s subject matter jurisdiction . . . . We begin with the four part test for justiciability . . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant. . . . [I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . In determin- ing mootness, the dispositive question is whether a suc- cessful appeal would benefit the plaintiff or defendant in any way.’’ (Citations omitted; emphasis omitted; internal quotation marks omitted.) In re Jorden R., 293 Conn. 539 , 555–56, 979 A.2d 469 (2009). ‘‘Section 17a-112 (j) (1) requires a trial court to find by clear and convincing evidence that the department made reasonable efforts to reunify a parent and child unless it finds instead that the parent is unable or unwilling to benefit from such efforts. In other words, either finding, standing alone, provides an independent basis for satisfying § 17a-112 (j) (1).’’ (Emphasis in origi- nal; internal quotation marks omitted.) In re Natalia M., 190 Conn. App. 583 , 588, 210 A.3d 682 , cert. denied, 332 Conn. 912 , 211 A.3d 71 (2019); see also In re Jorden R., supra , 293 Conn. 556 . In the present case, the court found that the depart- ment had made reasonable efforts to reunify the respon- dent with the child and that the respondent was unable or unwilling to benefit from reunification efforts. In other words, it found that both alternatives set forth in § 17a-112 (j) (1) had been satisfied. Because the respon- dent challenges on appeal only one of the two separate and independent bases for the court’s determination that the requirements of § 17a-112 (j) (1) had been satis- fied, this court can afford the respondent no relief. See In re Natalia M., supra , 190 Conn. App. 588 (appeal dismissed as moot where trial court found both alterna- tives set forth in § 17a-112 (j) (1) had been satisfied and respondent challenged on appeal only one of two bases). The appeal is dismissed. * In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court. ** December 1, 2020, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes. 1 The child’s father, Nigel C., consented to the termination of his parental rights and has not appealed from that judgment. We refer in this opinion to the respondent mother as the respondent. 2 The attorney for the child has adopted the brief of the petitioner, the Commissioner of Children and Families. 3 The court also denied the respondent’s motion to transfer guardianship. 4 The respondent also refused to be assessed for medication as recom- mended by a psychological evaluation performed in May, 2018. 5 The court also found that the department offered the respondent sub- stance abuse treatment and housing assistance. Specifically, the court found that the respondent had tested positive for marijuana both when she was admitted to Middlesex Hospital in March, 2019, and throughout her engage- ment with the Yale program. The respondent refused the department’s request that she attend substance abuse treatment and stated that she planned to obtain a medical marijuana card, but she never obtained it. The court also found that the department had provided financial assistance to the respondent to help pay her rent on two occasions. The respondent, however, owed $2100 in back rent and, following her noncompliance with a court-ordered repayment plan, was evicted. In February, 2019, the depart- ment made a referral to supportive housing, but she was found ineligible on the basis of the pending eviction, noncompliance with mental health treatment, and continued incidences of domestic violence.

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**************************************************************** The ‘‘officially released’’ date that appears near the beginning of this opinion is the date the opinion was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. This opinion is subject to revisions and editorial changes, not of a substantive nature, and corrections of a technical nature prior to publication in the Connecticut Law Journal. ****************************************************************  IN RE JA’LA L. ET AL* (AC 44072) Prescott, Elgo and Pavia, Js. Syllabus The respondent mother appealed to this court from the judgments of the trial court terminating her parental rights with respect to her minor children, who had previously been adjudicated uncared for. The respon- dent claimed that there was insufficient evidence to establish, by clear and convincing evidence, that termination of her parental rights was in the children’s best interest and that, in light of her continuing efforts to rehabilitate and the relationship she has with them, she would be capable of rehabilitating and resuming a responsible position in her children’s lives as required by the applicable statute (§ 17a-112) if given additional time and appropriate services. Held that there was sufficient evidence to support the trial court’s conclusion that it was in the best interests of the children to terminate the respondent’s parental rights; the respondent did not challenge as clearly erroneous any of the subordinate facts on which the court relied for its conclusion, the respondent’s argument that she should have been permitted more time to rehabilitate was unavailing, as it was inconsistent with the repeated recognition by our Supreme Court of the importance of permanency in children’s lives, and the respondent’s claim ignored the particular needs of the children, who had experienced confusion and anxiety due to the respondent’s sporadic visits and their uncertainty about future placements and who would benefit from the ability to build relationships and connect with permanent homes. Argued October 13—officially released December 1, 2020** Procedural History Petitions by the Commissioner of Children and Fami- lies to terminate the respondents’ parental rights with respect to their minor children, brought to the Superior Court in the judicial district of New Haven, Juvenile Matters, and tried to the court, Conway, J.; judgments terminating the respondents’ parental rights, from which the respondent mother filed an appeal to this court. Affirmed. David Rozwaski, assigned counsel, for the appellant (respondent mother). Kristin Losi, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Benjamin Zivyon and Evan O’Roark, assistant attor- neys general, for the appellee (petitioner).  Opinion PRESCOTT, J. The respondent, Shanea L., appeals from the judgments of the trial court rendered in favor of the petitioner, the Commissioner of Children and Families, terminating her parental rights with respect to her daughters, Ja’La L. and Ja’Myiaha L., on the ground that the respondent has failed to achieve a suffi- cient degree of personal rehabilitation pursuant to Gen- eral Statutes § 17a-112 (j) (3) (B) (i).1 On appeal, the respondent concedes that the evidence was sufficient to prove an adjudicatory ground, but claims that the court improperly concluded that termination was in the best interests of the children. We affirm the judgments of the trial court. The record reveals the following relevant facts and procedural history, as set forth by the trial court in its memorandum of decision or as otherwise undisputed in the record. The respondent is the mother of four children, only two of whom are the subject of this pro- ceeding, namely, Ja’La and Ja’Myiaha. The respondent has a history with the Department of Children and Fami- lies (department) that dates back to 2010.2 Only the respondent’s youngest child, Jordyn L., remained in her care at the time of these proceedings.3 In January, 2015, the Probate Court vested guardian- ship of Ja’La and Ja’Myiaha with their maternal great grandmother, due to the respondent’s homelessness, substance abuse, and mental health issues. In April, 2017, the girls’ great grandmother became unable to care for them because of her own medical conditions. On May 2, 2017, the petitioner obtained an order of temporary custody of Ja’La and Ja’Myiaha. Two days later, the petitioner filed neglect petitions, and, on June 8, 2017, the children were adjudicated uncared for4 and committed to the care and custody of the petitioner. Shortly thereafter, Ja’La and Ja’Myiaha were placed with Ja’La’s paternal aunt. In October, 2017, while in her aunt’s care, Ja’La was severely burned by hot water. She spent two months in a hospital receiving treatment for second and third degree burns, during which time the department offered to transport and supervise weekly hospital visits between the respondent and Ja’La. The respondent visited Ja’La at the hospital only once. Ja’Myiaha was removed from the aunt’s care and placed in her present nonrelative foster home, and Ja’La joined her sister on her discharge from the hospital. Ja’La has since been removed from that foster home because she threatened to kill Ja’Myiaha and attempted to physically assault her on a number of occasions.5 On March 8, 2018, a permanency plan of reunification was approved by the court, and the respondent was issued court-ordered specific steps. Specifically, the respondent was ordered, inter alia, to stop using illegal drugs, seek recommended substance abuse treatment, take part in individual therapy, and visit with her chil- dren as often as the department permits. With regard to visitation, the respondent was inconsistent in her efforts to see her children. She became more consistent beginning in August, 2018, when she had two hour supervised visits every other week with both girls. In April, 2019, however, the respondent ceased attending visits entirely. Approximately six months passed before the respondent saw Ja’La and Ja’Myiaha again in con- nection with a court-ordered psychological evaluation.6 During those intervening six months, the respondent also did not phone her children despite being permitted to do so. As to the respondent’s substance abuse and recom- mended treatment, in April, 2018, the department referred her to Family Based Recovery, but she denied drug usage and chose not to submit to urine/hair testing. In December, 2018, the respondent completed a sub- stance abuse evaluation at Midwestern Connecticut Council of Alcoholism (MCCA), at which time she acknowledged smoking marijuana two times a day, and her urine screen tested positive for marijuana. Conse- quently, the respondent was recommended to attend the MCCA Intensive Outpatient Program. She claimed, however, that she could not attend the program due to child care issues. The respondent was then referred to Multicultural Ambulatory Addict Services (MAAS), which is a drug treatment program with a child care component. She started the MAAS program in January, 2019, but stopped attending after a March, 2019 incident in which Jordyn assaulted another child and was banned from the program’s daycare. With regard to individual therapy, the department referred the respondent to an in-home program called K-Assist in June, 2017. She worked with K-Assist for about one year, did not attend the psychiatric evaluation that her clinician recommended, and ultimately chose not to participate in the program. For a period of time, the respondent was not willing to engage in any other services offered by the department. In February, 2019, the respondent attended an intake appointment at Inte- grated Wellness, but her participation in the program was short lived. On March 8, 2019, the petitioner filed termination of parental rights petitions with respect to the two children on the ground that the court had found them uncared for in a prior proceeding and the respondent has failed to achieve the degree of personal rehabilitation that would encourage the belief that within a reasonable time, considering the age and the needs of the children, she could assume a responsible position in the lives of the children. See General Statutes § 17a-112 (j) (3) (B) (i). The trial on the termination of parental rights peti- tions took place on December 16, 2019.7 The petitioner presented one witness, social worker Elizabeth Rey- noso. Reynoso testified, inter alia, that (1) the respon- dent did not successfully utilize the department’s ser- vices to address her own needs, (2) Ja’La and Ja’Myiaha have specialized needs that the respondent is not capa- ble of meeting, (3) in a conversation the week prior to trial, the respondent acknowledged that she was not currently able to meet the needs of her children and that she had not done what she needed to do to comply with specific steps,8 and (4) the department has con- cerns about the respondent’s ability to manage three children at once, particularly because she already was experiencing challenges with the only child currently in her care. The respondent testified on her own behalf, stating, inter alia, that she had started seeing a therapist whom she likes three weeks prior to trial. On December 20, 2019, the court issued a memoran- dum of decision granting the petitions to terminate the parental rights of the respondent.9 Specifically, the court noted that the respondent ‘‘suffers from major depressive disorder, post-traumatic stress disorder [(PTSD)] and a personality disorder. At times her anxi- ety precludes her from leaving her home and she habitu- ally consumes marijuana [despite not having a medical prescription]. [The department] has made reasonable efforts to address [the respondent’s] debilitating mental health issues and to foster [the respondent’s] relation- ship and interaction with the girls. The [department’s] efforts have had little to no positive impact because [the respondent] has been noncompliant and/or unen- gaged in referrals and services, the most glaring being her failure to engage in mental health and substance use treatment and her April, 2019 cessation of contact with Ja’La and Ja’Myiaha. Similarly, the testimony and exhibits reveal the respondent . . . is unable or unwill- ing to benefit from reunification efforts.’’ (Footnote omitted.) The court also quoted portions of Ines Schroeder’s December, 2019 psychological evaluation of the respon- dent.10 Specifically, Schroeder indicated in her evalua- tion that ‘‘[the respondent] strives to meet her own needs first with little consideration for the effect on others. This was noted when she voiced that she stopped visits [in April, 2019] because she . . . strug- gled . . . greatly in having them because they left her too emotional and upset. While it is important that she took care of herself, her choice left her daughters feel- ing abandoned by [the respondent]. She did not share with them what she was doing, why she was doing it, or work with a therapist to help her process and manage these emotions so she can be available to her daughters. Her choices left her daughters to suffer emotionally. . . . ‘‘While she feels more competent now than in the past, she recognizes her limits and admitted her need to stay away from visits because she is too emotionally overwrought by them. She is pessimistic about achiev- ing her goals. She desires to be present for her children but feels emotionally unprepared. She recognizes her inability to care for the girls now but fears what her decision will mean regarding her future relationship with her children. She wishes to have more time to prepare and be available to the girls.’’ Schroeder concluded that ‘‘[i]t is highly recom- mended that visits with [the respondent] stop unless it is determined that they are going to [be reunified] in the near future and the visits can be consistent and nurturing for them. Random inconsistent visits are very confusing to the girls and the discussion of potentially returning to her care without a clear understanding of when that might happen are emotionally damaging. When they witness their younger sister [Jordyn] engag- ing with [the respondent] and remaining in her care when they cannot can also be emotionally damaging. For them, it can affirm a belief that they are not wanted or valued as their sister is.’’ With regard to the individual needs of the children, the court found that Ja’La has ‘‘profound emotional and behavioral issues,’’ including PTSD and disruptive mood dysregulation. She was hospitalized multiple times in 2018, and again in December, 2019, due to her unsafe and out of control behaviors. Ja’Myiaha is diagnosed with PTSD, attention deficit hyperactivity disorder, and enuresis, and her treatment goals in 2018 through 2019 included ‘‘gaining control over her fits of anger, physical and verbal aggression towards animals and people, refusing to listen to adults, nightmares, lying, screaming and difficulty expressing herself.’’ (Internal quotation marks omitted.) The court further stated that ‘‘Ja’Myiaha has made considerable progress over the past year or so but she continues to need a level of care that is far beyond [the respondent’s] capabilities. Any contact between [the respondent] and the girls is detrimental to the girls’ well-being . . . .’’ Accordingly, the court found that the ground for ter- mination asserted in the petitions, namely a failure to rehabilitate, had been proven. The court next consid- ered the appropriate disposition of the children and made detailed written findings regarding their best interests pursuant to the criteria set forth in § 17a-112 (k).11 On the basis of these findings, the court deter- mined by clear and convincing evidence that termina- tion of the respondent’s rights was in the best interests of the children. Accordingly, the court terminated her parental rights and appointed the petitioner as the chil- dren’s statutory parent. On appeal, the respondent concedes that there were sufficient grounds for the termination of her parental rights. She contends, however, that the trial court improperly determined that it was in the best interests of the children to terminate her parental rights. Specifi- cally, the respondent argues that, in light of her continu- ing efforts to rehabilitate and the relationship she has with her daughters, the court should have concluded that she is capable of rehabilitating and becoming a responsible parent if given additional time and appro- priate services. We begin with general principles of law and our appli- cable standard of review. ‘‘Proceedings to terminate parental rights are governed by § 17a-112. . . . Under [that provision], a hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional phase. During the adjudica- tory phase, the trial court must determine whether one or more of the . . . grounds for termination of parental rights set forth in § 17a-112 [(j) (3)] exists by clear and convincing evidence.’’ (Internal quotation marks omitted.) In re Egypt E., 327 Conn. 506 , 526, 175 A.3d 21 , cert. denied sub nom. Morsy E. v. Commissioner of Children & Families, U.S. , 139 S. Ct. 88 , 202 L. Ed. 2d 27 (2018). ‘‘If the trial court determines that a statutory ground for termination exists, then it pro- ceeds to the dispositional phase. During the disposi- tional phase, the trial court must determine whether termination is in the best interests of the child. . . . The best interest determination also must be supported by clear and convincing evidence.’’ (Citations omitted; footnote omitted; internal quotation marks omitted.) In re Davonta V., 285 Conn. 483 , 487–88, 940 A.2d 733 (2008). At oral argument before this court, counsel for the respondent acknowledged that the respondent’s claim on appeal is, in essence, that there was insufficient evidence to establish, by clear and convincing evidence, that termination was in the best interests of the children. The petitioner also invites us to employ the evidentiary sufficiency standard of review in this case. Accordingly, we will apply that standard.12 When ‘‘the appropriate standard of review is one of evidentiary sufficiency . . . [the question is] whether the trial court could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to jus- tify its [ultimate conclusion]. . . . When applying this standard, we construe the evidence in a manner most favorable to sustaining the judgment of the trial court. . . . [W]e review the trial court’s subordinate factual findings for clear error, but we review the court’s ulti- mate conclusion . . . on the basis of whether the cumulative effect of the evidence was sufficient to jus- tify the ultimate conclusion.’’ (Citation omitted; internal quotation marks omitted.) In re James O., 160 Conn. App. 506, 522, 127 A.3d 375 (2015), aff’d, 322 Conn. 636 , 142 A.3d 1147 (2016). Here, there is abundant evidence in the record to support the court’s conclusion that it was in the best interests of the children to terminate the respondent’s parental rights. The respondent does not challenge as clearly erroneous any of the subordinate facts on which the court relied in concluding that termination was in the best interests of the children. Moreover, the respon- dent’s argument that she should have been permitted more time to rehabilitate before her parental rights were terminated is inconsistent with our Supreme Court’s repeated recognition of ‘‘the importance of permanency in children’s lives.’’ In re Davonta V., supra , 285 Conn. 494 –95 (‘‘Virtually all experts, from many different pro- fessional disciplines, agree that children need and bene- fit from continuous stable home environments. . . . [S]table and continuous care givers are important to normal child development. Children need secure and uninterrupted emotional relationships with the adults who are responsible for their care.’’ (Citation omitted; internal quotation marks omitted.)). Likewise, the respondent’s claim ignores the particu- lar needs of Ja’La and Ja’Myiaha as expressed in Schroeder’s recommendation following the December, 2019 psychological evaluation. Specifically, Schroeder stated that ‘‘[i]t is recommended that no further time be afforded to [the respondent] to reunify with Ja’La and Ja’Myiaha as the girls would benefit from some stability about their future and permanency. . . . [The visits the children have had with the respondent] are sporadic and also become a source of unrest and unease. . . . They are confused about their permanent placement because of these random visits. . . . The children continue to wonder whether they are going back with [the respondent] or not. This is a source of unrest and anxiety for them. . . . Discussions in the visits about the future and returning to [the respon- dent’s] care leave them feeling confused and stressed. This disrupts their ability to connect and bond with the people who are caring for them full time. It can also disturb their sense of loyalty and worry their biological mother may be upset they are making these bonds. The severance of the relationship [with the respondent] will permit them to process the loss but build the relation- ships that will be connected to their permanent homes.’’ Because there was sufficient evidence in the record to support the court’s conclusion that it was in the best interests of the children to terminate the respondent’s parental rights, the respondent’s claim fails. The judgments are affirmed. In this opinion the other judges concurred. * In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court. ** December 1, 2020, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes. 1 The court also terminated the parental rights of Ja’La’s father, Raymond B., and Ja’Myiaha’s putative fathers, Kenneth V. and John Doe, in the same proceeding on the ground of abandonment. None of these individuals appealed from the judgments, and, therefore, we refer to Shanea L. as the respondent in this opinion. 2 In 2010, the respondent was arrested after hitting her oldest child, Jaden L., in the head and causing him to fall down the stairs. The allegations of abuse were substantiated and guardianship was later transferred to Jaden’s maternal uncle and his girlfriend. 3 The department has expressed concern with the respondent’s ability to parent Jordyn. According to the respondent, Jordyn was briefly removed from her care. Subsequently, Jordyn was adjudicated neglected and remained in the respondent’s care under a court-ordered period of protec- tive supervision. 4 We note, as did the trial court in its memorandum of decision, that although many of the exhibits from the trial on the termination of the respondent’s parental rights reflect that the girls were adjudicated neglected, the original allegation of neglect was amended to allege that the girls were uncared for. 5 On December 10, 2019, Ja’La was removed and placed in a new foster home, in which she is the only child. 6 As part of the evaluation, Ines Schroeder, a psychologist, supervised an interaction between the respondent, Ja’La, Ja’Myiaha, and the respondent’s youngest child, Jordyn, on November 7, 2019. A written report regarding the evaluation is dated December 7, 2019. 7 On March 5, 2019, the respondent filed a motion to revoke commitment of Ja’La and Ja’Mayiaha, pursuant to Practice Book § 35a-14a, alleging that the reason for commitment no longer exists and it is in the children’s best interests to return to her care. A hearing on that motion was consolidated with the termination of parental rights trial. Ultimately, the court denied the respondent’s motion to revoke commitment, finding that she failed to sustain her burden of proof because grounds for commitment continued to exist. 8 The respondent agreed that this conversation took place and confirmed that she told Reynoso that (1) she has not done what was asked of her, and (2) she was tired of fighting for the children and hoped that they would get the help that they needed. 9 Both the attorney for the minor children and their guardian ad litem supported the termination of the respondent’s parental rights. Additionally, on appeal, the guardian ad litem for the minor children adopted the petition- er’s brief and supports the affirmance of the trial court’s decision. 10 Court-ordered psychological evaluations of the respondent, Ja’La, and Ja’Myiaha were conducted by Schroeder in July, 2018 and December, 2019. 11 General Statutes § 17a-112 (k) provides: ‘‘Except in the case where termination of parental rights is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption and Safe Families Act of 1997, as amended from time to time; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to the child’s parents, any guardian of such child’s person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust such parent’s circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the mainte- nance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.’’  12 We leave open the question as to whether this is the appropriate standard of review that must be applied when reviewing a court’s determination that termination is in the best interest of a child. See In re Avia M., 188 Conn. App. 736, 739, 205 A.3d 764 (2019) (‘‘the standard of review for the court’s determination of the best interest of the child is clearly erroneous’’). Addi- tionally, we note that we have previously declined to extend the evidentiary sufficiency standard of review to the court’s consideration of the best interest of a child where the evidence supported our decision under either standard. See In re Jacob W., 178 Conn. App. 195 , 205 n.10, 172 A.3d 1274 (2017) (citing In re Elijah G.-R., 167 Conn. App. 1 , 29–30 n.11, 142 A.3d 482 (2016)), aff’d, 330 Conn. 744 , 200 A.3d 1091 (2019); In re Nioshka A.N., 161 Conn. App. 627, 637 n.9, 128 A.3d 619 , cert. denied, 320 Conn. 912 , 128 A.3d 955 (2015). This case constitutes another instance in which the evidence supports our decision under either standard.

2020-12-02 14:09:47.542797+00

http://www.courts.state.nh.us/supreme/opinions/2020/2020067Fay.pdf

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by e-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court’s home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Carroll No. 2018-0402 THE STATE OF NEW HAMPSHIRE v. CHRISTINA FAY Argued: February 12, 2020 Opinion Issued: December 2, 2020 Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State. Lothstein Guerriero, PLLC, of Concord (Theodore Lothstein on the brief and orally), for the defendant. HANTZ MARCONI, J. The defendant, Christina Fay, appeals her convictions on seventeen counts of cruelty to animals. See RSA 644:8 (2016) (amended 2018, 2019). The Wolfeboro Police Department executed a search warrant at the defendant’s residence in June 2017 with the aid of the Humane Society of the United States (HSUS) and others, pursuant to which over seventy Great Danes were seized. The defendant argues that the Superior Court (Ignatius, J.) erred by denying her motion to suppress the evidence seized as a result of that search. We affirm.  I The following relevant facts are drawn from the trial court’s order on the defendant’s suppression motion and the suppression record. See State v. Pseudae, 154 N.H. 196 , 200 (2006). In 2017, the Wolfeboro Police Department was conducting an investigation of the defendant and her residence in Wolfeboro. During this time, two of the defendant’s former employees provided information to the police. One employee informed the police that there were seventy-eight dogs living at the residence. She stated that the dogs rarely went outside and were not housebroken, and that the residence was covered in animal waste. She reported that the dogs only received water when they were let outside, but that it was not uncommon for the dogs to remain inside for an entire weekend. She also stated that the dogs were fed spoiled meat, and that many vomited often, were underweight, and had liquid stool. In addition, the employee stated that there were riding crops located throughout the house to break up fights among the dogs, and that one dog would bite anyone other than the defendant who got near it. The defendant’s other employee told the police that there was a thick layer of urine and feces covering the floors throughout the residence, and that there were maggots and bugs covering the floor where some of the dogs were living. This employee reported that the dogs were fed a diet of raw chicken that was prepared in unsanitary conditions, and that there were maggots in a box of chicken in the refrigerator. In addition to their eyewitness accounts, each employee provided the police with photographs of the inside of the residence. The photographs depicted “dogs with injuries,” raw chicken meat, dog kennels in various parts of the house and garage, the floor covered in a brown substance resembling dog feces, and maggots in a refrigerator and on the ground. Officer Strauch of the Wolfeboro Police Department, who led the department’s investigation, visited the defendant’s property in May to serve a civil dog nuisance summons. While there, Strauch observed a large number of dogs barking inside the residence, as well as strong odors of feces, urine, and “something rotting” coming from an open door along the side of the building. Strauch also saw several large dogs in kennels, the floors of which were “thick with feces.” Veterinarians who examined dogs that had been rehomed by the defendant informed the police that the dogs were underweight and suffered from various diseases. Strauch applied for and obtained a search warrant for the defendant’s residence. However, the police department did not have the resources to transport, or provide shelter for, the roughly seventy-eight dogs they expected to recover from the residence. Strauch also testified that even if the dogs could be spread out among all of the animal shelters in the state, there was a risk that the dogs would spread disease to other animals in the shelters. 2 Conversely, HSUS had the resources to handle large-scale animal seizures, including access to large trailers with air conditioning to transport the dogs, and could provide them with adequate housing. Thus, Strauch asked the organization to assist with the execution of the search warrant. Strauch did not include in his affidavit supporting the search warrant’s issuance that HSUS would be assisting the police, and the warrant itself did not explicitly state that HSUS was permitted to assist in its execution. Strauch, along with every member of the police department, the Wolfeboro Fire Department, members of the ambulance team, employees from other town agencies, and staff from HSUS and the Pope Memorial SPCA, executed the warrant on June 16, 2017. Even with the number of persons assisting, Strauch testified that it took the entire day to execute the warrant. HSUS assisted with seizing and inventorying all of the dogs, and with evidence collection. Specifically, HSUS kept track of each dog, took photographs of where the dogs were kept, recorded videos, made a map of the rooms, photographed the dogs exiting the residence, and placed them in crates and into HSUS trailers for transportation. HSUS took possession of the dogs after they were removed from the house, providing them with housing and food at the organization’s expense. HSUS later publicized its involvement in the search, as well as photographs from the search, in connection with fundraising efforts. The defendant moved to suppress the evidence seized as a result of the search, arguing, among other things, that HSUS’s involvement violated her right to be free from unreasonable searches and seizures. After a hearing, the trial court denied the defendant’s motion. The defendant was subsequently brought to trial on eighteen counts of cruelty to animals.1 See RSA 644:8, III. The State entered a nolle prosequi on one count during trial, and a jury convicted the defendant on the remaining seventeen counts. This appeal followed. II On appeal, the defendant argues that the trial court erred in denying her motion to suppress. When reviewing a trial court’s ruling on a motion to suppress, we accept the trial court’s factual findings unless they lack support in the record or are clearly erroneous. State v. Folds, 172 N.H. 513 , 516 (2019). Our review of the trial court’s legal conclusions, however, is de novo. Id. The defendant raises arguments under both the State and Federal Constitutions. We first address her arguments under the State Constitution and rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226 , 231-33 (1983). 1 The dogs remained in HSUS’s care throughout the defendant’s trial. 3  The defendant contends that the trial court erred in denying her motion to suppress because the State violated two of her constitutional rights: her right to be free from unreasonable searches and seizures and her right to privacy. We begin with the defendant’s argument regarding her right to privacy. We understand the defendant to ground her right-to-privacy argument in the recently enacted amendment to our State Constitution, Part I, Article 2-b. N.H. CONST. pt. I, art. 2-b (effective December 5, 2018). To the extent the defendant argues that, irrespective of the enactment of Part I, Article 2-b, her right to privacy, under the State and Federal Constitutions, was violated by, inter alia, HSUS’s involvement in executing the search of her home and its subsequent “media and fundraising campaign,” she failed to raise any right-to- privacy argument to the trial court, and we decline to consider any such arguments on appeal. See State v. Blackmer, 149 N.H. 47 , 48 (2003). Accordingly, we limit our review of her right-to-privacy argument to Part I, Article 2-b of the State Constitution. The defendant argues that Part I, Article 2-b, which was enacted after the relevant events in her case, applies to her case retroactively. We have not had occasion to decide the proper means of determining whether a constitutional amendment has retroactive effect. Cf., e.g., State v. Brawley, 171 N.H. 333 , 341 (2018) (analyzing retroactivity of newly enacted legislation); State v. Tierney, 150 N.H. 339 , 342-45 (2003) (analyzing retroactivity of new constitutional rules announced by judicial decision). The defendant asserts that “[t]hree considerations compel the conclusion that [Part I,] Article 2-b applies to this case.” The first consideration she raises is, “The language of the amendment supports a finding of retroactive application.” Part I, Article 2-b states, “An individual’s right to live free from governmental intrusion in private or personal information is natural, essential, and inherent.” N.H. CONST. pt. I, art. 2-b. The defendant acknowledges that “the amendment does not expressly address the issue of retroactive application,” but points to the language “natural, essential, and inherent” as indicative of “[t]he choice by the citizens to characterize the right to privacy as pre-existing rather than newly-created.” (Citing Burrows v. City of Keene, 121 N.H. 590 , 596 (1981) (explaining that the phrase “natural, essential, and inherent” in Part I, Article 2 demonstrates that the rights articulated “are not bestowed by that constitutional provision but rather are recognized to be among the natural and inherent rights of all humankind”)). Consequently, she argues, the use of the phrase “natural, essential, and inherent” also “manifests the[] intent to apply the amendment retroactively.” The general rule employed by a majority of jurisdictions presumes that constitutional amendments operate prospectively unless the intent to apply the 4 amendment retroactively is clear. See, e.g., Evans v. Utah, 21 F. Supp. 3d 1192 , 1204-05 (D.Utah 2014) (applying Utah law); State v. Merritt, 467 S.W.3d 808 , 812 (Mo. 2015) (per curiam); People v. Dean, 677 N.E.2d 947 , 952 (Ill. 1997); Kneip v. Herseth, 214 N.W.2d 93 , 101-02 (S.D. 1974); see also 16 C.J.S. Constitutional Law § 116, Westlaw (database updated Sept. 2020); 16 Am. Jur. 2d Constitutional Law § 50, Westlaw (database updated Nov. 2020). “The presumption against retroactive application of changes in the law is deeply rooted in principles of fairness and due process.” Evans, 21 F. Supp. 3d at 1204 ; see, e.g., Shreveport v. Cole, 129 U.S. 36 , 42-43 (1889). “[T]he ‘principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.’” Landgraf v. USI Film Products, 511 U.S. 244 , 265 (1994) (quoting Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827 , 855 (1990) (Scalia, J., concurring)). Presuming that constitutional amendments apply prospectively is abundantly justifiable, and we hereby adopt such a presumption. Our presumption that constitutional amendments apply prospectively may be rebutted by the clear manifestation of intent to apply the amendment retroactively. Turning to Part I, Article 2-b, we conclude that the phrase “natural, essential, and inherent” is ambiguous, at best, as to whether it manifests an intent to have the amendment apply retroactively.2 See N.H. CONST. pt. I, art. 2-b. This ambiguity is insufficient to overcome the presumption of prospective application. See, e.g., Evans, 21 F. Supp. 3d at 1205 (“[T]he use of present and future tenses in [a constitutional amendment or statute] does not provide a clear and unavoidable implication that they operate on events already past.” (quotation omitted)). See generally 16 Am. Jur. 2d Constitutional Law § 50 (“[T]he general rule is that prospective effect alone is given to provisions of state constitutions, unless a contrary intention is clearly expressed. . . . In fact, constitutional amendments apply only prospectively in all but the most extraordinary circumstances.” (footnotes omitted)). We are, thus, unpersuaded that the defendant’s first consideration compels the application of Part I, Article 2-b to her case. The second consideration raised by the defendant is that “under a long- standing principle recognized under both state and federal constitutional law, 2 We are not persuaded by the defendant’s reasoning that, because the phrase “natural, essential, and inherent” in Part I, Article 2-b demonstrates an intent “to characterize the right to privacy as pre-existing rather than newly-created,” it also demonstrates an intent to apply the amendment retroactively. Even assuming an amendment to the State Constitution explicitly created a new right, it does not follow that the amendment could not also be deemed to overcome the presumption of prospective application through, for example, “an express retroactivity provision in the actual language of the amendment or extrinsic sources that leave no doubt that such was the voters’ manifest intent.” 16 Am. Jur. 2d Constitutional Law § 50. 5 new constitutional rules apply retroactively to all case[s] pending and on direct review when the new rule is announced.” Because this case was on direct review when Part I, Article 2-b was enacted, the defendant reasons that Article 2-b applies to her case. The support for this argument is limited to citations to two cases: Teague v. Lane, 489 U.S. 288 (1989), and our decision in Tierney. However, neither case analyzed whether a constitutional amendment has retroactive effect. See Teague, 489 U.S. at 294-96 (analyzing, for cases on collateral review, whether the new constitutional rule articulating the evidentiary showing necessary to make out a prima facie case of racial discrimination based upon the manner in which the prosecution uses peremptory challenges, as announced in Batson v. Kentucky, 476 U.S. 79 , 96- 98 (1986), had retroactive effect); Tierney, 150 N.H. at 342-45 (analyzing, for cases on direct review, whether the new constitutional rule articulating “the absolute right to sever unrelated cases,” as announced in State v. Ramos, 149 N.H. 118 , 127 (2003), had retroactive effect). Retroactivity, as contemplated in Teague and Tierney, was limited to cases pending on direct appeal, the status of which was relevant because the constitutional rule at issue had been announced by judicial decision. See Tierney, 150 N.H. at 343-44 (“It hardly comports with the ideal of administration of justice with an even hand, when one chance beneficiary—the lucky individual whose case was chosen as the occasion for announcing the new principle—enjoys retroactive application, while others similarly situated have their claims adjudicated under the old doctrine.” (brackets omitted) (quoting Griffith v. Kentucky, 479 U.S. 314 , 327- 28 (1987)); see also Teague, 489 U.S. at 295-96 (“Petitioner’s conviction became final 2½ years prior to Batson, thus depriving petitioner of any benefit from the rule announced in that case.”). However, whether a defendant’s case is pending on appeal has no bearing on whether an amendment to the State Constitution was intended to apply retroactively. Accord Merritt, 467 S.W.3d at 812 (rejecting a similar argument — that a constitutional amendment, enacted when defendant’s case was not yet final, applied retroactively — explaining that defendant’s reliance on Griffith was misplaced because it only governed the retroactivity of “newly stated procedural rules of federal constitutional law”). We are, thus, unpersuaded that the defendant’s second consideration compels the application of Part I, Article 2-b to her case. The third consideration raised by the defendant is that “consideration of this new enactment by the people of our State is unavoidable in determining the contours and limits of what places, effects, and personal information the people reasonably expect to remain private,” i.e., a defendant’s reasonable expectation of privacy under Part I, Article 19. Even assuming without deciding that we agree that analyzing whether a defendant had a reasonable expectation of privacy under Part I, Article 19 necessitates an analysis of Part I, Article 2-b, it is undisputed that the defendant’s case does not implicate an examination of her reasonable expectation of privacy. See State v. Schulz, 164 6 N.H. 217 , 225 (2012) (“[T]he reasonableness of a search conducted pursuant to a warrant is a distinct constitutional inquiry from the question of whether a warrant is required in the first place.”); see also, e.g., State v. Orde, 161 N.H. 260 , 267 (2010) (reasoning that “[b]ecause the defendant had a reasonable expectation of privacy in his deck, a warrant or an exception to the warrant requirement was needed for the officer to lawfully enter the defendant’s deck”). Furthermore, again assuming without deciding that, looking forward, an analysis of a defendant’s reasonable expectation of privacy under Part I, Article 19 will necessitate the contemplation of Part I, Article 2-b, the existence of such a prospective implication does not speak to whether Part I, Article 2-b was intended to apply retroactively. See, e.g., Kneip, 214 N.W.2d at 101 (“It is the general rule, and settled law in South Dakota, that a constitutional provision should not be construed to have retroactive effect unless such intention is clearly expressed.”); see also Landgraf, 511 U.S. at 265 . We are, thus, unpersuaded that the defendant’s third consideration compels the application of Part I, Article 2-b to her case. Ultimately, we are not convinced by the defendant’s arguments that Part I, Article 2-b applies retroactively to her case. Therefore, we need not address her remaining arguments pertaining to Part I, Article 2-b. We conclude that the defendant has not demonstrated that her right to privacy was violated. III We now turn to the defendant’s argument that the State violated her right to be free from unreasonable searches and seizures. Part I, Article 19 of the New Hampshire Constitution protects all people, their papers, their possessions, and their homes from unreasonable searches and seizures. Folds, 172 N.H. at 516-17 ; see N.H. CONST. pt. I, art. 19. There are several constitutional requirements for the issuance and execution of search warrants. See Folds, 172 N.H. at 520 ; Schulz, 164 N.H. at 221 . For example, search warrants “must be sufficiently particular and must be supported by a finding of probable cause.” Schulz, 164 N.H. at 221 ; see Folds, 172 N.H. at 520 ; Orde, 161 N.H. at 269 . In addition, even if a warrant satisfies the particularity and probable cause requirements, “the manner of its execution must in other respects be reasonable.” Schulz, 164 N.H. at 221 ; see also United States v. Ramirez, 523 U.S. 65 , 71 (1998) (“The general touchstone of reasonableness which governs Fourth Amendment analysis governs the method of execution of the warrant.” (citation omitted)). The defendant contends that the State “violated the requirement that the manner of [the warrant’s] execution be reasonable” by failing to obtain, prior to the warrant’s execution, judicial authorization for the involvement of HSUS, a private organization. We have not previously considered the extent to which it is constitutionally reasonable for the police to involve civilians when executing 7 search warrants. We begin our analysis by noting that “[f]ederal constitutional law does not proscribe the use of civilians in searches. In fact, Congress has explicitly authorized the practice, and courts have repeatedly upheld the practice.” Bellville v. Town of Northboro, 375 F.3d 25 , 32 (1st Cir. 2004) (citation omitted); see 18 U.S.C. § 3105 (2018) (“A search warrant may in all cases be served by any of the officers mentioned in its direction or by an officer authorized by law to serve such warrant, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution.”). In New Hampshire, RSA 595-A:8 states: “An officer executing a search warrant may take with him suitable assistants and suffer no others be with him.” RSA 595-A:8 (2001). Thus, the New Hampshire Legislature, in a manner similar to Congress, has authorized officers executing search warrants to take with them “suitable assistants.” Id.; see Bellville, 375 F.3d at 32 . That civilian accompaniment is not flatly barred, as a matter of constitutional or statutory law, when executing a search warrant does not end our inquiry, of course, for such accompaniment will not be reasonable in every case. See, e.g., Richards v. Wisconsin, 520 U.S. 385 , 394 (1997) (reasonableness of manner in which searches are conducted must be judged on case-by-case basis). To that end, “[c]ourts have articulated guidelines for evaluating police involvement of citizens in searches under the Fourth Amendment’s reasonableness standard.” Bellville, 375 F.3d at 33 . In Wilson v. Layne, 526 U.S. 603 (1999), the United States Supreme Court held that “it is a violation of the Fourth Amendment for police to bring . . . third parties into a home during the execution of a warrant when the presence of the third parties in the home was not in aid of the execution of the warrant.” Wilson, 526 U.S. at 614 . It was undisputed in Wilson that the civilians who accompanied the officers — newspaper reporters — did not assist the police in executing the warrant. See id. at 607, 611. The reporters were merely brought along “as part of a . . . ride-along policy.” Id. at 607. Wilson stands for the proposition that it is constitutionally unreasonable for the police to bring civilians into a home when executing a warrant when the involvement of the civilians does not aid in the execution of the warrant. See id. at 614. “Police cannot invite civilians to perform searches on a whim . . . .” United States v. Sparks, 265 F.3d 825 , 832 (9th Cir. 2001), overruled on other grounds by United States v. Grisel, 488 F.3d 844 (9th Cir. 2007). “[W]here [civilian] assistance is rendered in aid of a warrant,” however, the civilian involvement tends to be within “the bounds of reasonableness.” Bills v. Aseltine, 958 F.2d 697 , 706 (6th Cir. 1992); see also Bellville, 375 F.3d at 33 (stating that, for civilian involvement to be reasonable, “[t]he civilian must have been serving a legitimate investigative function,” and “the officers must have some demonstrable need for the presence of the civilian”). In fact, “[c]ivilian searches are sometimes more reasonable than searches by officers.” United States v. Bach, 310 F.3d 1063 , 1067 (8th Cir. 2002). For example, “a civilian may possess a peculiar expertise or knowledge regarding the means of retrieval 8 or identification of items covered by a warrant, and . . . permitting civilian assistance in such circumstances [may] actually enhance[] the reasonableness of the search by lessening its intrusiveness.” Com. v. Sbordone, 678 N.E.2d 1184 , 1188 (Mass. 1997); see also Schalk v. State, 767 S.W.2d 441 , 445, 453- 54 (Tex. Crim. App. 1988) (explaining that, where officer did not have specialized knowledge to distinguish computer files covered by warrant from files not covered, “use of [civilian] assistance . . . would tend to limit or restrict the items seized rather than enlarge upon them”); State v. Kern, 914 P.2d 114 , 118 (Wash. Ct. App. 1996) (noting that “police officer[s] will not ordinarily perform a search of a bank’s records, indeed may not be qualified to do so,” and that “[w]here a warrant is issued for specific bank records, delegation of the search to bank employees is not improper”). Here, the defendant does not dispute that the police required assistance to execute the search warrant for her residence and to care for the dogs seized. Nor does the defendant dispute that the police required the assistance of an organization such as HSUS. Instead, the defendant argues that Strauch’s failure to obtain express authorization for HSUS’s aid from the magistrate who issued the search warrant was constitutionally unreasonable. We do not agree. The defendant has cited no instance in which a court has held that the failure to obtain express judicial authorization for citizen aid prior to the execution of a warrant rendered the subsequent search unconstitutional. We have found no instance in our own research. Although some courts have opined “that it might be a ‘better practice,’ if circumstances permit, for law enforcement officers to disclose to the magistrate that civilians will be involved in the execution of the search and for the warrant to indicate that the magistrate permitted this involvement,” Bellville, 375 F.3d at 33 -34; accord Sbordone, 678 N.E.2d at 1188 n.9, “there appears to be no authority indicating that a failure to follow such a procedure violates the Fourth Amendment,” 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.10(d), at 979 (5th ed. 2012). Recognizing this dearth of authority from outside New Hampshire, the defendant argues that prior judicial authorization for citizen involvement is, or ought to be, required under Part I, Article 19 of the State Constitution. The defendant relies upon prior cases in which we have held that Part I, Article 19 provides greater protections than does the Fourth Amendment, and also upon the state constitutional preference “for favoring judicial oversight rather than deferring to the discretion of the police officer.”3 3 To the extent the defendant asserts additional points in support of her position that HSUS’s involvement in this case, including the organization’s post-search publicization efforts, violated Part I, Article 19’s mandate that search warrants be executed in a reasonable manner, those assertions are unsupported by citation to authority and are insufficiently developed. See Blackmer, 149 N.H. at 49 (“[A] mere laundry list of complaints . . . , without developed legal argument, is insufficient to warrant judicial review.” (quotation omitted)). 9  We see no reason to create a new constitutional rule in this case, especially one that is “unnecessary in light of the overarching requirement that the use of civilians in the execution of a search must still meet the constitutional standard of reasonableness.” Bellville, 375 F.3d at 33 . Regardless of whether the issuing magistrate expressly authorizes the civilian’s participation at the time of the warrant’s issuance, the civilian’s participation is subject to later judicial scrutiny in reviewing the reasonableness of the warrant’s execution. See Dalia v. United States, 441 U.S. 238 , 258 (1979). Moreover, we fail to see how civilian involvement that is reasonable at the time of the warrant’s execution would somehow become unreasonable because the officers intended to utilize civilian aid when they acquired the warrant but did not obtain the magistrate’s express authorization to do so. See United States v. Boulanger, 444 F.3d 76 , 83-84 (1st Cir. 2006); see also State v. Henderson, 629 N.W.2d 613 , 621 (Wis. 2001) (“[T]he manner in which a search warrant is executed . . . does not require prior judicial authorization.”). The pertinent inquiry under Part I, Article 19 is whether the manner of the warrant’s execution was reasonable. See Schulz, 164 N.H. at 221 . A conclusion that the search warrant for the defendant’s home was executed unreasonably because of conduct that occurred prior to its execution is inconsistent with the nature of this inquiry. See id.; see also Boulanger, 444 F.3d at 83 (explaining that, because the rule that officers knock and announce their presence when executing a warrant “falls under the Fourth Amendment’s reasonableness clause, as opposed to its warrant clause[,] . . . the reasonableness of a police officer’s decision to conduct a no-knock entry ‘must be evaluated as of the time they [conduct the entry].’” (alteration in original) (citation omitted) (quoting Richards, 520 U.S. at 395 )); cf. Schulz, 164 N.H. at 225 (“[T]he reasonableness of a search conducted pursuant to a warrant is a distinct constitutional inquiry from the question of whether a warrant is required in the first place.”). Such a conclusion would fundamentally alter the reasonableness inquiry by moving its focus back in time to when the officers obtained the warrant, and would require analysis of the reasonableness of pre- execution conduct. See Boulanger, 444 F.3d at 83 -84. Because the pertinent analysis under Part I, Article 19 is whether “the manner of [the warrant’s] execution . . . [was] reasonable,” Schulz, 164 N.H. at 221 , we cannot conclude, from the fact that Strauch did not obtain prior judicial authorization for HSUS’s participation in executing the warrant, that the manner of the warrant’s execution was unconstitutional. We agree with the United States Court of Appeals for the First Circuit and the Supreme Judicial Court of Massachusetts, however, that it may be wise for officers to notify the issuing magistrate of the fact that civilians will assist in a warrant’s execution, when it is possible to do so. See Bellville, 375 F.3d at 33 -34; Sbordone, 678 N.E.2d at 1188 n.9. Indeed, “[p]rior disclosure and approval of that involvement might avoid the type of challenges we have in this case.” Bellville, 375 F.3d at 34 . That said, for the reasons discussed 10 above, such disclosure and approval are not prerequisites to the civilians’ assistance under Part I, Article 19’s reasonableness requirement. In summation, we conclude that the State did not violate Part I, Article 19’s requirement that the manner of a search warrant’s execution be reasonable by failing to obtain authorization for HSUS’s involvement prior to the warrant’s execution. As the State Constitution is at least as protective as the Federal Constitution in these circumstances, we further conclude that the State did not violate the Fourth Amendment’s reasonableness requirement. See Schulz, 164 N.H. at 221 ; Bellville, 375 F.3d at 33 -34. Additionally, the defendant has failed to demonstrate that her right to privacy was violated. Because we have concluded that a constitutional violation did not occur, we need not address the defendant’s arguments regarding whether suppression of the evidence obtained from the search would be an appropriate remedy for such a violation. Affirmed. HICKS, BASSETT, and DONOVAN, JJ., concurred. 11

2020-12-02 14:09:48.453453+00

http://www.courts.state.nh.us/supreme/opinions/2020/2020068RyeSchoolDist.pdf

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by e-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court’s home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ State Board of Education No. 2019-0397 APPEAL OF RYE SCHOOL DISTRICT (New Hampshire State Board of Education) Argued: July 1, 2020 Opinion Issued: December 2, 2020 C.B. and E.B., self-represented parties, by brief, and C.B. orally. Soule, Leslie, Kidder, Sayward & Loughman, P.L.L.C., of Wolfeboro (Barbara F. Loughman on the brief and orally) for the Rye School District. Gordon J. MacDonald, attorney general (Laura E. B. Lombardi, senior assistant attorney general, and Jill A. Perlow, senior assistant attorney general, on the brief, and Ms. Lombardi orally), for the New Hampshire State Board of Education. HICKS, J. The Rye School District (District) appeals a decision of the New Hampshire State Board of Education (State Board) overturning the decision of the Rye School Board (School Board) denying a request by C.B. and E.B. (Parents) to reassign their child (Student) to a school in another district pursuant to RSA 193:3 (2018) (amended 2020). We affirm.  The following background facts are taken from the hearing officer’s recommendation to the State Board, which, in turn, largely summarized the presentations of both parties at the hearing. According to the testimony of Student’s mother (Mother), Student has a growth hormone deficiency that hinders physical growth and causes Student to fall behind academically and socially. Due to Student’s small size, she is often picked up and carried by other pupils. In third grade, Student was pinched and poked by other pupils and was allegedly assaulted by one of them. Parents met with the Rye Elementary School principal, but she declined to file a bullying report. The school responded to this incident and a subsequent incident by promising to keep Student and the other child apart. Although Mother indicated that fourth grade apparently went relatively well, at the start of fifth grade, Mother requested reassignment of Student, believing that the atmosphere of the middle school program was too much for Student and that Student needed to take things more slowly. She also alleged that the principal did not understand Student’s 504 plan and was not aware of Student’s attention deficit hyperactivity disorder (ADHD) and anxiety issues. See 29 U.S.C. § 794 (2018) (codifying Section 504 of the Rehabilitation Act of 1973, which prohibits any program receiving federal funds from excluding or discriminating against an “otherwise qualified individual with a disability”). Mother requested an Individual Education Program (IEP) meeting, but the school believed that such a meeting was not necessary because the 504 plan could meet Student’s needs. During that academic year, Student was again assaulted by a peer, had issues with anxiety, and was not gaining weight. Sometime before the end of the 2016-2017 school year, Parents decided to withdraw Student from Rye Elementary School and enroll her in an elementary school in a different town. According to Mother, the new school was following the 504 plan and Student no longer needed help with homework. Student’s anxiety decreased and she was gaining weight. In addition, according to Mother, there has been no bullying at Student’s new school. The hearing officer, however, found that there were “continuing issues at the new school after the reassignment took place.” The hearing officer also found that Mother had been aware of Rye Elementary School’s bullying policy but neither filed a bullying complaint nor addressed the issue with the school superintendent until after Parents had decided to place Student in a different school. In November 2017, Parents applied to the School Board for reassignment of Student to her new school pursuant to RSA 193:3, I. At that time, the statute provided, in part, that “[a]ny person having custody of a child may apply to the school board for relief if the person thinks the attendance of the child at the school to which such child has been assigned will result in a manifest educational hardship to the child.” RSA 193:3, I. Thereafter, the 2 superintendent informed Parents that the School Board had denied the request. Parents appealed the School Board’s decision to the State Board. After an October 2018 hearing, the hearing officer recommended denial of the appeal, concluding that Parents “failed to demonstrate that attendance at the Rye School had a detrimental or negative effect on the Student” and that “[t]here was no basis for reassignment due to Manifest Educational Hardship.” Parents filed an exception to the hearing officer’s recommendation with the State Board, which scheduled oral argument on the matter. The State Board voted to accept the hearing officer’s report but reject the hearing officer’s recommendation, thereby overturning the School Board’s decision. The District moved for a rehearing on a number of grounds, including that the State Board violated its rules by failing to record the hearing before it. Acknowledging that it failed to record its proceedings as required by RSA 541- A:31, VII (2007) and New Hampshire Administrative Rule Ed 212.02(f) (Rule 212.02(f)), the State Board granted the motion for rehearing “for the limited purpose of rehearing oral arguments” and, in light of that decision, declined to address the other grounds in the District’s motion at that time. After the rehearing, the State Board issued its final decision, reaffirming its rejection of the hearing officer’s recommendation and its decision to overturn the School Board’s denial of reassignment. The District filed an appeal from the administrative agency, see Sup. Ct. R. 10, to this court arguing that the State Board erred by: (1) substituting its judgment for that of the hearing officer on matters of witness credibility; (2) rejecting the hearing officer’s findings and reversing the School Board’s decision where the State Board’s “conclusions are not supported by competent evidence in the record”; (3) denying the District’s “request for rehearing after reviewing a partial transcript that omitted most of the testimony of the . . . District’s witnesses”; (4) failing to follow its own rules; (5) failing to apply the correct standard for manifest educational hardship; and (6) “violat[ing] RSA 541-A:35 by failing to rule upon each of the . . . District’s proposed Findings of Fact.” (Bolding omitted.) Before reaching these arguments, however, we consider a preliminary issue raised by the State Board; specifically, the State Board “seeks clarification as to whether a party can appeal, under RSA [chapter] 541, a [State] Board finding of manifest educational hardship under RSA 193:3.” I. Appellate Review “Appeals from administrative proceedings may be taken under RSA chapter 541 only when so authorized by law.” Petition of Hoyt, 143 N.H. 533 , 534 (1999) (quotation and brackets omitted); see RSA 541:2 (2007). 3  We have interpreted this clause to mean that the provisions of chapter 541 do not provide an appeal from the determination of every administrative agency in the state. Unless some reference is made to chapter 541 in any given statute, an appeal under the provisions of chapter 541 is not authorized by law. Petition of Hoyt, 143 N.H. at 534 (quotation and brackets omitted). Our decisions have not been uniform as to whether a party seeking review of a State Board decision under RSA 193:3 may appeal under RSA chapter 541 or must obtain a writ of certiorari. In Landaff School District v. State Board of Education, 111 N.H. 317 , 318 (1971), we noted that RSA 193:3, as then in force, “ma[de] no provision for appeal from orders of the State board, but on the contrary provide[d]: ‘The decision of the state board shall be final and binding.’” Landaff School Dist., 111 N.H. at 318 (quoting RSA 193:3 (Supp. 1970)). Accordingly, we reviewed the State Board’s decision under a writ of certiorari. Id. In Appeal of Peirce, 122 N.H. 762 , 763 (1982), however, we accepted an appeal of an RSA 193:3 decision under RSA 541:6 without comment. See RSA 541:6 (2007); cf. Swain v. State Bd. of Educ., 116 N.H. 332 , 333 (1976) (deciding, without comment, an RSA chapter 541 appeal of a State Board decision declining to make an original assignment of a child to a preschool special education program). Subsequent to our decisions in Landaff School District and Appeal of Peirce, the legislature enacted RSA 21-N:11, which provides, in part, that the State Board shall “[h]ear appeals and issue decisions, which shall be considered final decisions of the department of education for purposes of RSA 541, of any dispute between individuals and school systems or the department of education, except those disputes governed by the provisions of RSA 21-N:4, III.” RSA 21-N:11, III (2020). The State Board expresses doubt as to whether this enactment authorizes this appeal, noting that “[t]he express language of RSA 21-N:11, III does not appear to create a substantive appeal right as it does not state that all Board decisions are subject to appeal under RSA 541.” The District, on the other hand, argues that because that section “contains a clear reference to RSA 541,” it satisfies the “so authorized by law” requirement of RSA 541:2. More specifically, the District contends that although RSA 193:3 does not refer to RSA chapter 541, the reference to that chapter in RSA 21- N:11 “serves as a catch all reference to authorize appeals to this Court for any final decision of the State Board.” We decline to address these arguments, because we are not writing on a clean slate with respect to this issue. In Appeal of Morrill, 145 N.H. 692 , 695 (2001), we declined to address the argument that RSA 21-N:11, III provided a jurisdictional basis for an appeal of the State Board’s decision regarding a teacher’s suspension under RSA 189:31. See RSA 189:31 (2018). There, we assumed without deciding that the action was properly before the court under 4 RSA chapter 541, “[g]iven the State’s apparent acquiescence that the board’s decision is appealable under RSA chapter 541.” Appeal of Morrill, 145 N.H. at 695 . Subsequently, without elaboration, we found jurisdiction under RSA 21- N:11, III for an RSA chapter 541 appeal in Appeal of Farmington School District, 168 N.H. 726 , 730 (2016), and Appeal of Dunbarton School District, 169 N.H. 50 , 54 (2016). Because the State Board has not asked us to reexamine or overrule Appeal of Farmington School District and Appeal of Dunbarton School District, stare decisis impels us to follow them. See Reid v. N.H. Attorney Gen., 169 N.H. 50 9, 522 (2016) (declining to reconsider prior precedent when neither party had asked us to do so). Accordingly, we answer the State Board’s request for clarification by holding, in accordance with Appeal of Farmington School District and Appeal of Dunbarton School District, that a State Board finding of manifest educational hardship under RSA 193:3 is appealable under RSA chapter 541. Under RSA 541:13, a party seeking to set aside a decision of the State Board has the burden of demonstrating that the decision “is clearly unreasonable or unlawful.” RSA 541:13 (2007). “We will not disturb the [State] Board’s decision, except for errors of law, unless we are satisfied, by a clear preponderance of the evidence before us, that it is unjust or unreasonable.” Appeal of Dunbarton Sch. Dist., 169 N.H. at 54 (quotation omitted). “The [State] Board’s findings of fact are presumed prima facie lawful and reasonable.” Id. “We review the [State] Board’s rulings on issues of law de novo.” Id. Applying this standard of review, we now turn to the District’s substantive arguments on appeal. II. Due Process Violations The District argues that the State Board violated its due process rights in a number of respects related to the State Board’s rejection of the hearing officer’s recommendation. For purposes of this appeal, we will assume, without deciding, that the District may bring its due process challenges against the State Board. See Appeal of Town of Bethlehem, 154 N.H. 314 , 328 (2006) (citing conflicting case law and assuming, without deciding, that town could raise due process challenge against a state agency). We first address the District’s claims under the State Constitution and rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226 , 231-33 (1983). We have held that an administrative agency’s rejection or modification of a hearing officer’s decision does not violate due process as long as the agency “adequately explains the grounds for its decision as we . . . articulated in” Appeal of Dell. Appeal of Dell, 140 N.H. 484 , 495 (1995). In Appeal of Dell, we explained: Consistent with an administrative agency’s duty to hear and decide all cases over which it has jurisdiction, the general rule is 5  that a hearing officer’s decision is merely advisory, and not binding. Although the final decision must be that of the board, the hearing officer’s decision is a relevant and important part of the administrative record. While his findings and conclusions are entitled to weight, they may be accepted, rejected, or modified by the board. We hold, however, that where an administrative agency rejects an advisory decision, it must adequately explain the grounds for such different decision, and fully and particularly set out the agency’s decision based upon an independent examination of the record. Id. at 493 (citations omitted). We also noted that where “the responsibility for hearing the evidence and making factual determinations, including credibility assessments, was delegated by the board to a hearing officer, the board’s role is limited to reviewing the record.” Id. at 496. Thus, notwithstanding an administrative agency’s general authority, as outlined in Appeal of Dell, to reject a hearing officer’s findings of fact, the agency’s board may not “make factual determinations that depend upon the credibility of the witnesses’ statements.” Appeal of Hopkinton Sch. Dist., 151 N.H. 478 , 482 (2004) (emphasis added). In evaluating opinion evidence contained in the record, however, an agency’s board may “properly resolve[] evidentiary conflicts by using its own expertise and technical judgment.” Appeal of Dell, 140 N.H. at 496 . Furthermore, “before we will evaluate a due process claim, [the party making the claim] must show actual prejudice.” Appeal of Omega Entm’t, 156 N.H. 282 , 287 (2007). The District first argues that the State Board violated due process when, having delegated fact-finding responsibility to the hearing officer, it then “substituted its judgment for that of the hearing officer on credibility of witnesses.” The District contends that there was a “credibility issue in the instant matter” because there was a “dispute as to the facts of the case.” The State Board, on the other hand, argues that this case did not turn on witness credibility. It asserts: The witnesses’ testimony essentially summarized the factual information documented in the records and provided opinions as to whether attendance at the Rye School had a detrimental or negative effect on Student. . . . [T]he evidentiary hearing did not involve conflicting testimony between witnesses about events, and neither the Hearing Officer nor the [State] Board made findings regarding the credibility of witnesses in reaching their decisions. We have reviewed the record and, although, as discussed below, the transcript of the October 2018 hearing contains numerous omissions and is 6 difficult to follow, we agree with the State Board’s characterization. We conclude, based on the record as a whole, including the transcript of the State Board members’ deliberative discussions, that the State Board did not make factual determinations that depended upon the credibility of witnesses’ statements. Indeed, as one board member explained, “while the transcript put some voices to the record, . . . the voices supported the record that we have been provided with[,] which were extensive exhibits.” The District next argues that the State Board “violated [the District’s] due process rights by rejecting the hearing officer’s fact findings without grounds or an adequate explanation for rejecting those fact findings,” and that the State Board “did not adequately explain the grounds for its rejection of the hearing officer’s recommendation.” We disagree. With respect to its rejection of the hearing officer’s recommendation, the State Board stated its reasoning in its initial order as follows: The State Board accepted the Hearing Officer’s finding that the Rye School District offered accommodations to address the parent’s concerns, but disagreed that those accommodations were sufficient to meet the student’s unique educational and social needs. The record showed that the district’s ongoing attempts to fit the student into the school’s program did not alleviate the many problems faced by the student. As reflected in the record, the student’s issues were satisfactorily addressed only when the student was placed in another school. In its order after rehearing, the State Board elaborated further: The record reflects that all three of th[e] criteria [of the Rye School Board’s manifest educational hardship policy] were met in this case. The student had an unusual and extraordinary combination of physical, social, and academic challenges that made her school assignment detrimental to her. The record showed that the student’s assignment aggravated her anxiety for a number of reasons, including ongoing bullying that was never adequately resolved, and the stress of trying to navigate a school structure for which she was not developmentally ready. The school offered accommodations [which] were designed to fit the student into an educational environment to which her developmental delays and anxiety made her ill-suited. The failure of those accommodations only increased the student’s anxiety. The record shows that placing the student in a different educational environment resolved or alleviated the issues that prompted the parents to pursue the new placement. 7 We conclude that these explanations are adequate under the standard in Appeal of Dell. See Appeal of Dell, 140 N.H. at 493 . To the extent the District asserts that the State Board rejected the hearing officer’s factual findings, we disagree. The State Board “accept[ed] the Hearing Officer’s Report and den[ied] the Hearing Officer’s Recommendation[].” We interpret this decision as accepting the hearing officer’s factual findings but disagreeing with the hearing officer’s interpretation of those facts and his ultimate conclusions based thereon. See Guy v. Town of Temple, 157 N.H. 642 , 649 (2008) (“[T]he interpretation of a tribunal’s order presents a question of law, which we review de novo.”); cf. Appeal of Farmington Sch. Dist., 168 N.H. at 731 (explaining that the State Board’s conclusion, contrary to that reached by the local board, as to whether employee had been insubordinate, “was not a de novo factual determination,” but “[r]ather, the state board accepted the local board’s account of what [employee] did[,] . . . but found clearly erroneous the local board’s conclusion that [employee’s] actions were inconsistent with district policy”). The District argues that the State Board’s conclusions “directly contradict[]” a number of specific findings of fact made by the hearing officer. Again, however, any points of disagreement were not as to the underlying facts, but, rather, were to the ultimate conclusions as to whether Student’s circumstances were unique and whether attendance at Rye Elementary School had a negative or detrimental effect on Student. Cf. Appeal of Farmington Sch. Dist., 168 N.H. at 731 . As one State Board member stated: It seemed to me that . . . accommodations were made repeatedly but [the] factual record I think pretty clearly indicates that those accommodations were not satisfactory. And that, to me, is really the crux of this issue . . . - - not whether accommodations were made, which is what I think the Hearing Officer was focusing on, on listing the facts, but whether those accommodations were successful in resolving the . . . issues in this case. To me, the record remains pretty clear that, despite the numerous accommodations offered, they didn’t succeed in creating the kind of educational environment that this child needed. To the extent the District contends that the conclusions reached by the State Board were not supported by competent evidence in the record, we disagree. The record contains extensive documentary evidence of Student’s “physical, social and academic challenges,” including her growth hormone deficiency and resulting small stature, ADHD, and anxiety. It also contains records of the District’s interventions, Parent’s continued complaints, Student’s continued anxiety, and Student’s progress at the out-of-district school. We cannot conclude that the State Board’s conclusions are not supported by the record. 8  The District next argues that the State Board “deprived [it] of due process by relying on the incomplete and inaccurate record in making its final decision.” According to the District, the transcript of the October 2018 hearing before the hearing officer omitted testimony of the District’s two witnesses. To prevail on its due process claim, the District must show that the deficiencies in the October 2018 hearing transcript so hindered the State Board’s ability to provide meaningful review that actual prejudice to the District resulted. Cf. State v. Marshall, 162 N.H. 657 , 672 (2011) (noting, in criminal context, that “in order to obtain a new trial, a defendant must show specific prejudice to his appeal resulting from the incompleteness of the record” (quotation omitted)); Oroh v. Holder, 561 F.3d 62 , 65 (1st Cir. 2009) (noting, in immigration context, that “to succeed on a claim of inadequate transcription, [the petitioner] must show specific prejudice to his ability to perfect an appeal sufficient to rise to the level of a due process violation,” or, “[m]ore specifically, he must show at a bare minimum that the gaps relate to matters material to his case and that they materially affect his ability to obtain meaningful review” (quotations and citations omitted)). We conclude that the District has failed to show actual prejudice. The witnesses whose testimony the District claims was missing from the transcript or inaccurately transcribed were its own witnesses. “The law is pellucid that if a missing transcript reasonably could be recreated by the complaining party, its absence is not prejudicial.” Oroh, 561 F.3d at 66 (finding no prejudice where “all of the missing information came during testimony from Oroh himself, or were comments by his attorney” and, therefore, was “readily available to Oroh, yet was never provided—by affidavit or otherwise—to the [Board of Immigration Appeals] or th[e] court”). The District submitted to the State Board the affidavit of a participant at the October 2018 hearing detailing the testimony of both of the District’s witnesses. To the extent the District contended at oral argument that the affidavit was insufficient, it has not demonstrated that it was unable to file a more comprehensive one. Under these circumstances, we conclude that the deficiencies in the transcript were not prejudicial. Id. We conclude that the District has failed to demonstrate a violation of due process under the State Constitution. The Federal Constitution offers the District no greater protection than does the State Constitution under these circumstances. See Appeal of Dell, 140 N.H. at 493 ; Cousin v. Office of Thrift Supervision, 73 F.3d 1242 , 1244, 1250 (2d Cir. 1996) (concluding that Acting Director of the Office of Thrift Supervision’s “absolute discretion to accept or reject the [Administrative Law Judge’s] recommended findings of fact and rulings of law when arriving at his Final Order” does not violate due process); Appeal of Omega Entm’t, 156 N.H. at 287 ; Oroh v. Holder, 561 F.3d at 65-66 . Accordingly, we reach the same result under the Federal Constitution as we do under the State Constitution. 9  III. Violation of Rule 212.02(b) The District contends that the State Board erred by failing to follow Rule 212.02(b), which grants parties the right to a 10-minute oral argument on the record before the State Board. See N.H. Admin. R., Ed 212.02(b). It argues: Instead of following its rules, the [S]tate [B]oard swore in one of Student’s parents as a witness and conducted a two-hour hearing, during which it allowed the parent to testify, making a number of statements and claims that were not in the record or were contradicted by the record and findings of fact of the hearing officer. The District also asserts that it had no opportunity to cross-examine the parent and that the State Board failed to record the hearing. We note that in response to the District’s motion for rehearing, the State Board acknowledged that it failed to record the January 10 hearing and granted the District’s motion for rehearing “for the limited purpose of rehearing oral arguments.” The District does not explain how the rehearing failed to cure any deficiencies in the original hearing or how the alleged errors in the prior hearing tainted the State Board’s decision on rehearing. The District does not contend that, despite rehearing oral arguments, the State Board impermissibly relied upon the prior hearing before it. Accordingly, the District has not shown that it is entitled to appellate relief. See Giles v. Giles, 136 N.H. 540 , 545 (1992) (“For an error to require reversal on appeal, it must have been prejudicial to the party claiming it.” (quotation and brackets omitted)). Furthermore, to the extent the District challenges the lack of an opportunity to cross-examine Parents, we conclude that this claim is not preserved. As Parents point out, and the District’s counsel conceded at oral argument, the District did not request to conduct cross-examination at the hearing. See State v. Porter, 144 N.H. 96 , 100–01 (1999) (concluding defendant’s claim that “the trial court erred in precluding him from cross-examining the victim” was not preserved where “defendant did not object to the trial court’s ruling, but rather acquiesced to it”). IV. Manifest Educational Hardship The District next argues that the State Board erred by failing to “apply the correct standard for Manifest Educational Hardship and improperly rul[ing] that Manifest Educational Hardship existed.” We accept, for purposes of this appeal, the District’s contention that because the State Board’s policy had expired, the only applicable policy at the time of the School Board’s hearing was “the District’s local board policy,” which required Parents “to prove the existence of unusual and extraordinary circumstances and the detrimental 10 or negative effect of the current placement on” Student. We disagree that the State Board failed to apply that standard. The State Board specifically concluded that Student “had an unusual and extraordinary combination of physical, social, and academic challenges” and that Student’s placement at Rye Elementary School had a detrimental effect on her. The State Board accepted that the school had offered Student accommodations, but concluded that they were insufficient to meet her unique needs. The State Board further concluded that placement in the new school “satisfactorily addressed” Student’s issues and either “resolved or alleviated the issues that prompted the parents to pursue the new placement.” V. Violation of RSA 541-A:35 Finally, the District argues that the State Board violated RSA 541-A:35 by failing to rule on each of the District’s proposed findings of fact. See RSA 541-A:35 (2007) (providing, in pertinent part, that “[i]f, in accordance with agency rules, a party submitted proposed findings of fact, the decision shall include a ruling upon each proposed finding”). We disagree. The District received rulings by the hearing officer on each of its proposed findings and, as we previously noted, the State Board accepted those findings. Nothing in RSA 541-A:35 requires the State Board to go through the redundant task of separately ruling on requested findings on which the hearing officer has already ruled. The purpose of an agency’s statutory obligation to state the factual findings supporting its conclusion is “to provide this court with an adequate basis upon which to review the [the agency’s] decision.” Petition of Support Enforcement Officers, 147 N.H. 1 , 9 (2001). Because we conclude that the State Board’s decision includes findings of fact and conclusions of law sufficient to permit appellate review, it satisfies the requirements of RSA 541-A:35. See Appeal of Malo, 169 N.H. 661 , 669 (2017). In sum, the District has failed to show that the State Board’s decision “is clearly unreasonable or unlawful.” RSA 541:13. Accordingly, we affirm. Affirmed. BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred. 11

2020-12-02 14:12:01.231121+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2020/2020-Ohio-5473.pdf

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as West v. Bode, Slip Opinion No. 2020-Ohio-5473.] NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published. SLIP OPINION NO. 2020-OHIO-5473 WEST ET AL., APPELLEES, v. BODE ET AL., APPELLANTS. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as West v. Bode, Slip Opinion No. 2020-Ohio-5473.] Marketable Title Act—Dormant Mineral Act—No irreconcilable difference between the two acts—Judgment affirmed. (No. 2019-1494—Submitted July 8, 2020—Decided December 2, 2020.) APPEAL from the Court of Appeals for Monroe County, No. 18 MO 0017, 2019-Ohio-4092. _____________________ FRENCH, J. {¶ 1} This appeal concerns the interplay between the Ohio Marketable Title Act, R.C. 5301.47 et seq., and the subsequently enacted Ohio Dormant Mineral Act, R.C. 5301.56, which is itself part of the Marketable Title Act. We specifically consider the continued viability of the Marketable Title Act as it relates to interests in oil and gas that have been severed from the interests in surface property. Appellants, John L. Christman, Katherine Haselberger, and Charlotte McCoy, as  SUPREME COURT OF OHIO well as amici curiae Ascent Resources-Utica, L.L.C., and Gulfport Energy Corporation, urge this court to hold that the Dormant Mineral Act supersedes and controls over the original Marketable Title Act due to a conflict between the two acts. {¶ 2} An express purpose of both the Marketable Title Act and the Dormant Mineral Act is to “simplify[] and facilitat[e] land title transactions by allowing persons to rely on a record chain of title.” R.C. 5301.55. The acts operate in different ways to individually achieve that purpose. We acknowledge at the outset, however, the concerns expressed by amici Ascent Resources-Utica, L.L.C., and Gulfport Energy Corporation that joint application of the acts to severed oil and gas interests brings about the unintended consequence of complicating determinations of ownership of those interests. But because we discern no irreconcilable conflict between the Dormant Mineral Act and the Marketable Title Act, we must apply them as the General Assembly wrote them—as independent, alternative statutory mechanisms that may be used to reunite severed mineral interests with the surface property subject to those interests. Facts and procedural background {¶ 3} As with most mineral-interest cases, this one presents facts that defy easy recitation. {¶ 4} In 1902, George L. and Charlotte Parks sold to C.J. Bode and George T. Nalley one-half of the royalty interest in the oil and gas underlying about 66 acres of land in Monroe County (the “severed royalty interest”), as evidenced by a recorded sale of royalty. In 1916, through multiple recorded transactions, the severed royalty interest was transferred to E.J. Wichterman, Clara Thompson, and M.M. Mann. {¶ 5} George Parks transferred the surface property to Lettie West in 1929 by way of a warranty deed that stated, “The one half royalty is reserved by grantor in aforesaid tracts as sold to C.J. Bode and George T. Nalley.” Following Lettie 2  January Term, 2020 West’s death in 1959, the property was transferred to George E. West by way of a recorded certificate of transfer. The certificate of transfer confirmed that the property was the same as that conveyed in the 1929 deed to Lettie West, but it did not mention the severed royalty interest. In 1996, George E. West and his wife transferred the property—again defined as the same premises that George Parks conveyed to Lettie West in January 1929—to appellee Wayne West, subject to “all * * * reservations of record.” In 2002, Wayne West and his wife conveyed a portion of the property to appellee Rusty West, “[s]ubject to all * * * reservations * * * of record.” {¶ 6} In February 2017, appellees Wayne and Rusty West (“the Wests”) filed this action in the Monroe County Court of Common Pleas for a declaratory judgment that the Marketable Title Act had extinguished the severed royalty interest and had vested that previously severed interest in the Wests. They named as defendants Bode, Nalley, Thompson, Wichterman, Mann, and Mann’s predecessor in interest, A.D. McVey, as well as their unknown heirs, devisees, executors, administrators, relicts, next of kin, and assigns. Service by publication was made on defendants, none of whom filed an answer. {¶ 7} Appellants filed a motion to intervene and to file a counterclaim, which the trial court granted. Appellants claim they are the owners of a portion of the severed royalty interest. In their counterclaim, they seek a declaration that they are the owners of 1/16 of the royalty interest in oil and gas underlying the subject property, as well as an order quieting their title to that interest. Appellants’ claimed interest stems from a 1944 auditor’s deed that transferred 1/16 of the royalty interest in oil and gas underlying the subject property to Nova A. Christman. The auditor’s deed identified the subject property and its owner, Lettie West, as well as the recorded 1902 sale of royalty interest from George L. and Charlotte Parks. Nova and Dollie W. Christman recorded a notice of claim of their interest in 1977, citing R.C. 5301.51 and 5301.52—provisions of the Marketable Title Act that provide for 3  SUPREME COURT OF OHIO preservation by notice. A certificate of transfer recorded with the Monroe County Recorder in 2007 establishes that Nova A. Christman’s mineral interest had been conveyed to appellants upon his death. {¶ 8} Appellants filed a motion for summary judgment, in which they argued that the Wests had failed to state a valid claim under the Marketable Title Act because the more specific provisions of the Dormant Mineral Act supersede the general provisions of the Marketable Title Act. The Wests responded by filing their own motion for summary judgment. They argued that the severed royalty interest had been extinguished by operation of law pursuant to the Marketable Title Act, in part because neither the Wests’ 1959 root of title (that is, the transfer from Lettie West to George West) nor any recorded document transferring the surface property during the following 40 years mentioned the severed royalty interest. {¶ 9} The trial court granted appellants’ motion for summary judgment and declared them the owners of a 1/16 royalty interest in oil and gas underlying the subject property. It held that the Dormant Mineral Act irreconcilably conflicts with the general provisions of the Marketable Title Act and that the more specific Dormant Mineral Act controls. {¶ 10} The Seventh District Court of Appeals reversed the trial court’s judgment and remanded the case for the trial court to adjudicate the Wests’ claim under the Marketable Title Act. 2019-Ohio-4092, 145 N.E.3d 1190 , ¶ 63. It held that the Marketable Title Act and the Dormant Mineral Act “are co-extensive alternatives whose applicability in a particular case depends on the time passed and the nature of the items existing in the pertinent records.” Id. at ¶ 47. {¶ 11} This court accepted a discretionary appeal to decide whether the Dormant Mineral Act supersedes the Marketable Title Act with respect to severed mineral interests. See 157 Ohio St. 3d 1535 , 2020-Ohio-122, 137 N.E.3d 1196 . 4  January Term, 2020 Analysis R.C. 1.51 {¶ 12} The heart of appellants’ position—that the Marketable Title Act does not apply to severed interests in oil and gas, because the more specific Dormant Mineral Act supersedes it—arises from R.C. 1.51, which sets out the familiar specific-over-general rule of statutory construction. R.C. 1.51 states: If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail. {¶ 13} In other words, courts should construe conflicting statutes in a way that gives effect to both. Id. A specific statutory provision will prevail over a general one only when the provisions irreconcilably conflict. Gahanna-Jefferson Local School Dist. Bd. of Edn. v. Zaino, 93 Ohio St. 3d 231 , 234, 754 N.E.2d 789 (2001), citing United Tel. Co. of Ohio v. Limbach, 71 Ohio St. 3d 369 , 372, 643 N.E.2d 1129 (1994). {¶ 14} The validity of appellants’ argument depends, then, on the existence of an irreconcilable conflict between the Marketable Title Act and the Dormant Mineral Act. We examine each in turn. The Marketable Title Act {¶ 15} “The General Assembly enacted the Marketable Title Act, R.C. 5301.47 et seq., in 1961, Am.H.B. No. 81, 129 Ohio Laws 1040, to extinguish interests and claims in land that existed prior to the root of title, with ‘the legislative purpose of simplifying and facilitating land title transactions by allowing persons 5  SUPREME COURT OF OHIO to rely on a record chain of title.’ ” Corban v. Chesapeake Exploration, L.L.C., 149 Ohio St. 3d 512 , 2016-Ohio-5796, 76 N.E.3d 1089 , ¶ 17, quoting R.C. 5301.55. The Marketable Title Act provides that a person who has an unbroken chain of title of record to any interest in land for at least 40 years has a “marketable record title” to the interest. R.C. 5301.48. Except as stated in R.C. 5301.49, a marketable record title “operates to extinguish” all interests and claims that existed prior to the effective date of the root of title, R.C. 5301.47(A), and those preexisting interests are “declared to be null and void,” R.C. 5301.50. The Marketable Title Act extinguishes property interests by operation of law after 40 years from the effective date of the root of title unless a saving event has occurred. Corban at ¶ 18 (lead opinion) and ¶ 75 (Kennedy, J., concurring). An interest that has been extinguished by operation of the Marketable Title Act cannot be revived. See R.C. 5301.49(D). {¶ 16} R.C. 5301.49 sets out circumstances in which a marketable record title will remain subject to interests that existed prior to the root of title. Those exceptions “ ‘serve as a shield to protect’ ” the excepted interests from extinguishment. Spring Lakes, Ltd. v. O.F.M. Co., 12 Ohio St. 3d 333 , 335, 467 N.E.2d 537 (1984), quoting Heath v. Turner, 309 N.C. 483 , 493, 308 S.E.2d 244 (1983). We have referred to those exceptions as “saving event[s].” Corban at ¶ 18. In part, R.C. 5301.49 provides that a marketable record title remains subject to an interest that predates the effective date of the root of title when (1) the preexisting interest is specifically identified in the muniments that form the record chain of title, (2) the holder of the preexisting interest has recorded a notice claiming the interest, in accordance with R.C. 5301.51, or (3) the preexisting interest arises out of a title transaction that was recorded subsequent to the effective date of the root of title. R.C. 5301.49(A), (B), and (D). {¶ 17} As originally enacted in 1961, the Marketable Title Act did not apply to mineral interests. Former R.C. 5301.53(E), 129 Ohio Laws at 1046. The General Assembly amended the act in 1973, however, “ ‘to enable property owners to clear 6  January Term, 2020 their titles of disused mineral interests.’ ” Corban at ¶ 18, quoting Am.S.B. No. 267, 135 Ohio Laws, Part I, 942-943. That amendment included a grace period, through the end of 1976, that afforded mineral-interest holders more than three years in which to preserve their interests and avoid extinguishment of those interests by the Marketable Title Act. Former R.C. 5301.56, Am.S.B. No. 267, 135 Ohio Laws, Part I, at 943. Thereafter, “the Marketable Title Act extinguished oil and gas rights by operation of law after 40 years from the effective date of the root of title” unless one of the saving events set out in R.C. 5301.49 applied. Corban at ¶ 18. {¶ 18} This court first addressed application of the Marketable Title Act to a severed mineral interest in Heifner v. Bradford, 4 Ohio St. 3d 49 , 51, 446 N.E.2d 440 (1983). Heifner involved competing claims to the mineral rights underlying real property owned by William H. and Shirley S. Waters. The Waterses argued that the Marketable Title Act had previously extinguished the severed mineral interest by operation of law because neither their root of title—a 1936 deed—nor any subsequent document in the surface estate’s chain of title mentioned a preexisting mineral reservation. Id. at 49-51. Affidavits of transfer of the reserved mineral rights were recorded in 1957 as part of a chain of title independent from that of the surface estate. Id. at 51. {¶ 19} The Waterses held an unbroken chain of record title to the surface estate for more than 40 years, which extinguished prior claims and interests, except as provided in R.C. 5301.49. Id. The Waterses argued that the 1957 affidavits of transfer did not constitute “title transactions” under R.C. 5301.49(D) that would preserve the severed mineral interest because they did not appear within the same chain of title as that under which they were claiming marketable record title. Id. {¶ 20} For guidance in evaluating the Waterses’ argument, this court looked to the Model Marketable Title Act, upon which the General Assembly based the Ohio act. We cited a comment in the model act, which stated that a conveyance 7  SUPREME COURT OF OHIO recorded subsequent to the effective date of the root of title preserves a preexisting interest “ ‘both where there are claims under a single chain of title and where there are two or more independent chains of title.’ ” (Emphasis added in Heifner.) Id. at 52, quoting Simes & Taylor, Model Title Standards 32 (1960). In line with the model act, this court rejected the Waterses’ argument and instead held that a marketable record title remains “subject to an interest arising out of a ‘title transaction’ under R.C. 5301.49(D) which may be part of an independent chain of title” from the surface property. Id. at 52-53. Because the recorded 1957 transfer of the mineral rights was a title transaction under R.C. 5301.49(D), the Marketable Title Act did not extinguish the mineral interest. Id. at 53. The Dormant Mineral Act {¶ 21} The General Assembly enacted the Dormant Mineral Act as a component of the Marketable Title Act in 1989 “ ‘to provide a method for the termination of dormant mineral interests and the vesting of their title in surface owners, in the absence of certain occurrences within the preceding 20 years.’ ” Corban, 149 Ohio St. 3d 512 , 2016-Ohio-5796, 76 N.E.3d 1089 , at ¶ 19, quoting Sub.S.B. No. 223, 142 Ohio Laws, Part I, 981. The Dormant Mineral Act provided a mechanism to facilitate the reunification of abandoned mineral interests with surface interests in order “to clear title and promote the use of the mineral rights for development and production.” Chesapeake Exploration, L.L.C. v. Buell, 144 Ohio St.3d 490, 2015-Ohio-4551, 45 N.E.3d 185 , ¶ 25. {¶ 22} The 1989 Dormant Mineral Act stated: “Any mineral interest held by any person, other than the owner of the surface of the lands subject to the interest, shall be deemed abandoned and vested in the owner of the surface,” unless (a) the mineral interest was related to coal, (b) the interest was held by the United States, the state of Ohio, or another political body 8  January Term, 2020 described in the statute, or (c) one or more of the * * * saving events [listed in former R.C. 5301.56(B)(1)(c)] had occurred within the preceding 20 years. {¶ 23} Corban at ¶ 20, quoting former R.C. 5301.56(B)(1), Sub.S.B. No. 223, 142 Ohio Laws, Part I, at 986. When it enacted the Dormant Mineral Act, the General Assembly did not amend the general provisions of the Marketable Title Act to once again exclude interests in oil and gas. Nor did it include language to indicate that the Dormant Mineral Act was the exclusive remedy for clearing title to severed mineral interests. {¶ 24} The General Assembly amended the Dormant Mineral Act in 2006, in part to require a surface owner to initiate a notice procedure, as set out in R.C. 5301.56(E)(1), before a mineral interest could be deemed abandoned and vested in the surface owner. Sub.H.B. No. 288, 151 Ohio Laws, Part III, 5960, 5966. Unlike the 1989 version of the act, however, the 2006 Dormant Mineral Act afforded a mineral-interest holder the opportunity to preserve that interest, even after the passage of 20 years without a saving event, by filing a notice of preservation within 60 days after the surface owner serves notice of intent to declare the mineral interest abandoned. Dodd v. Crosky, 143 Ohio St. 3d 293 , 2015-Ohio-2362, 37 N.E.3d 147 , ¶ 27, 34, citing R.C. 5301.56(H). {¶ 25} Both as enacted in 1989 and as amended in 2006, the Dormant Mineral Act operates differently than the Marketable Title Act. It does not extinguish interests by operation of law; interests are instead “ ‘deemed abandoned and vested in the owner of the surface.’ ” Corban, 149 Ohio St. 3d 512 , 2016-Ohio- 5796, 76 N.E.3d 1089 , at ¶ 21, quoting former R.C. 5301.56(B)(1), Sub.S.B. No. 223, 142 Ohio Laws, Part I, at 986, and ¶ 29, quoting former R.C. 5301.56(B), Sub.H.B. No. 288, 151 Ohio Laws, Part III, at 5966. Based on the General Assembly’s use of the phrase “shall be deemed abandoned,” we held that the 1989 9  SUPREME COURT OF OHIO Dormant Mineral Act was not self-executing but instead “created a conclusive presumption” of abandonment—an “evidentiary device” that a surface owner may use in a quiet-title action to eliminate a dormant mineral interest. Id. at ¶ 25, 26. The 2006 Dormant Mineral Act uses the same operative language and likewise creates a conclusive presumption of abandonment. {¶ 26} A surface owner who sought to reunite a severed mineral interest with the surface estate under the 1989 Dormant Mineral Act was required to commence a quiet-title action for a decree that the mineral interest was deemed abandoned. Id. at ¶ 28. But the 2006 act created an extrajudicial mechanism to effectuate reunification of severed mineral interests. Upon compliance with its terms, which include not only the notice procedures under R.C. 5301.56(E)(1) but also the recording of a notice of abandonment under R.C. 5301.56(E)(2), the 2006 Dormant Mineral Act operates “to establish the surface owner’s marketable record title in the mineral estate.” Corban at ¶ 30. See also R.C. 5301.56(H)(2) (“Immediately after the notice of failure to file a mineral interest is recorded, the mineral interest shall vest in the owner of the surface of the lands formerly subject to the interest * * * ”). There is no irreconcilable conflict between the Marketable Title Act and the Dormant Mineral Act {¶ 27} Appellants acknowledge that R.C. 1.51 requires an irreconcilable conflict between specific and general statutes before the specific will prevail as an exception to the general. In support of their assertion of an irreconcilable conflict here, appellants identify several differences between the Dormant Mineral Act and the general provisions of the Marketable Title Act, including that the acts contain different lookback periods, that the Dormant Mineral Act does not automatically extinguish interests, and that the Dormant Mineral Act contains saving events and notice requirements that are not part of the original Marketable Title Act. While differences indisputably exist, they do not demonstrate an irreconcilable conflict. 10  January Term, 2020 {¶ 28} As we stated in our discussion of the acts individually, the Marketable Title Act and the Dormant Mineral Act operate differently and after different periods of time. The Marketable Title Act extinguishes property interests after 40 years without a saving event, measured from the effective date of the surface owner’s root of title; the Dormant Mineral Act provides a mechanism that a surface owner may use to have a severed mineral interest deemed abandoned and vested in the surface owner after a shorter, 20-year period. One commentator has stated: In general, a dormant mineral act provides a mechanism, similar to a marketable title act, to erase the ambiguity created by ancient claims, but it does so more aggressively. In other words, ancient claims do not need to be so ancient to be quickly dismissed by the function of a dormant minerals act-if such claims pose a threat to the marketable title of natural resources. {¶ 29} Stewart, When the Shale Gale Hit Ohio: The Failures of the Dormant Mineral Act, Its Heroic Interpretations, and Grave Choices Facing the Supreme Court, 43 Cap.U.L.Rev. 435, 440 (2015). But the fact that the two acts operate differently, toward different ends, does not mean that they are irreconcilably in conflict. Indeed, it suggests the contrary. {¶ 30} Appellants correctly point out that the Dormant Mineral Act includes saving events that are not included as saving events under the Marketable Title Act. But it is neither surprising nor an indication of an irreconcilable conflict that in light of their differing operations, the two acts contain different saving events. The Dormant Mineral Act is concerned with abandonment—a fact that, at common law, would have required proof of the owner’s subjective intent. See Corban, 149 Ohio St.3d 512, 2016-Ohio-5796, 76 N.E.3d 1089 , at ¶ 25, citing Beer v. Griffith, 61 11  SUPREME COURT OF OHIO Ohio St.2d 119, 121, 399 N.E.2d 1227 (1980). Saving events under the Dormant Mineral Act therefore tend to be relevant to the question of the owner’s intent; they include the existence of title transactions, production of minerals, use of the interest for underground gas storage, issuance of a permit with respect to the interest, claims of preservation, and the issuance of a separate tax parcel number for the mineral interest. See R.C. 5301.56(B)(3)(a) through (f). Application of the Marketable Title Act, on the other hand, is not concerned with abandonment and therefore does not call into question the owner’s subjective intent. Because the acts affect mineral interests differently, it is only reasonable that they contain different saving events, and we may not disregard the General Assembly’s policy determinations in support of the statutory differences in the guise of construction. See Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St. 3d 280 , 2010-Ohio-1029, 927 N.E.2d 1092 , ¶ 35, quoting Groch v. Gen. Motors Corp., 117 Ohio St. 3d 192 , 2008-Ohio-546, 883 N.E.2d 377 , ¶ 212 (“ ‘It is not the role of the courts ‘to establish legislative policies or to second-guess the General Assembly’s policy choices’ ”). {¶ 31} Appellants express concern that because of the differences between saving events under the two acts, a mineral-interest holder may succeed in preserving an interest under the Dormant Mineral Act but nevertheless face extinguishment of that interest under the Marketable Title Act. True enough, but as with the other differences between the acts, that possibility is not dispositive. First, a mineral interest extinguished by operation of law pursuant to the Marketable Title Act no longer exists to be saved under the Dormant Mineral Act, and it cannot be revived. R.C. 5301.49(D). Further, even in the hypothetical scenario in which a saving event under the Dormant Mineral Act occurs before the 40-year period under the Marketable Title Act has elapsed, the fact that the interest will not be “deemed abandoned” under the Dormant Mineral Act does not preclude the General Assembly from prescribing “extinguishment” of the interest under the Marketable Title Act. 12  January Term, 2020 {¶ 32} There is nothing in the statutory language of either act to preclude a mineral-interest holder from ensuring compliance with both the Marketable Title Act and the Dormant Mineral Act. Each statute sets out simple actions that a holder of a mineral interest may take to perpetually preserve that interest. The differences between the acts do not create any obstacle to giving effect to both, which is what R.C. 1.51 directs us to do. {¶ 33} Amici curiae Ascent Resources-Utica, L.L.C., and Gulfport Energy Corporation cite In re Petition to Annex 320 Acres to S. Lebanon, 64 Ohio St. 3d 585 , 597 N.E.2d 463 (1992), to argue that a specific statute and a general statute irreconcilably conflict when they provide separate mechanisms or standards. That case involved a challenge to the Warren County Board of County Commissioners’ resolution approving a landowner-initiated petition to annex land to the village of South Lebanon. Id. at 586, 587. {¶ 34} Cincinnati Milacron, Inc., which owned property within the area to be annexed, opposed the annexation. Id. at 587-588. It sought to challenge the board’s resolution under two statutes: R.C. 2506.01 and former R.C. 709.07, Am.S.B. No. 151, 138 Ohio Laws, Part I, 409, 410. R.C. 2506.01 provides for a direct appeal to the court of common pleas of “every final order, adjudication, or decision” of a political subdivision. In an R.C. 2506.01 appeal, the court must consider whether the board’s order is “unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence.” R.C. 2506.04. On the other hand, former R.C. 709.07(A) provided for a petition to the court of common pleas “for an injunction restraining the auditor or clerk from presenting the annexation petition and other papers to the legislative authority.” The complaining party in an action under former R.C. 709.07 had to establish “by clear and convincing evidence that the board’s decision [was] unreasonable or unlawful or that there was some error in the proceedings.” In re Petition to Annex at 591, citing former R.C. 709.07(D). 13  SUPREME COURT OF OHIO {¶ 35} In determining the applicability of those remedies, this court was “confronted with two statutes which appear[ed] on their face to apply two different remedies in challenging decisions made by boards of county commissioners approving annexations of territory.” Id. at 594. One issue before the court was “whether the General Assembly provided for two distinct remedies for disappointed parties in landowner-petitioned annexation proceedings.” Id. at 591. We answered that question in the negative. Id. at 597. Of particular concern was the fact that the two prescribed actions involved different standards of review. An appeal under R.C. 2506.01 involved a “virtual de novo examination of the record,” whereas an action for injunctive relief under former R.C. 709.07 was “highly deferential to the board.” Id. at 594. This court held that “due to the differing standards of review, * * * R.C. 2506.01 appeals cannot be reconciled with R.C. 709.07 injunction actions as applied to” a board’s decision on landowner-initiated annexation petitions. Id. {¶ 36} In contrast to the provisions at issue in In re Petition to Annex, the Marketable Title Act and the Dormant Mineral Act do not provide different and conflicting mechanisms to evaluate the same action, even though they may both ultimately affect the continued viability of a severed mineral interest. The acts ask different questions and provide for different results. In light of those differing inquiries and consequences, the fact that joint application of the acts may result in a mineral interest being preserved under one but not under the other does not demonstrate a conflict between the acts. {¶ 37} In perhaps tacit acknowledgement that there is no irreconcilable conflict between the language of the Marketable Title Act and the Dormant Mineral Act, appellants turn to notions of legislative purpose and argue that the two provisions cannot be harmonized because application of the Marketable Title Act to severed mineral interests would frustrate the legislative intent of the Dormant Mineral Act. Specifically, they argue that application of the Marketable Title Act 14  January Term, 2020 to severed mineral interests would be contrary to the legislative intent to promote reliance on record chains of title. Appellants’ argument is misplaced. {¶ 38} The legislative purpose upon which appellants rely—“simplifying and facilitating land title transactions by allowing persons to rely on a record chain of title”—is central to both the Marketable Title Act and the Dormant Mineral Act. R.C. 5301.55. According to appellants, the Dormant Mineral Act serves that purpose by providing for recorded notices of preservation and affidavits of abandonment. They argue that extinguishment of mineral interests under the Marketable Title Act, which does not require similar recordings, would frustrate that purpose. But that argument overlooks that the General Assembly drafted the Marketable Title Act to operate that way in service of the very purpose appellants now claim is frustrated. {¶ 39} Appellants’ argument is really a broader, general critique of the Marketable Title Act, rather than a specific critique of its application to severed mineral interests. Extinguishment of all interests—whether in minerals or not— occurs the same way under the Marketable Tile Act and relies heavily, if not exclusively, on the record chain of title. Determination of the act’s applicability begins with a review of the record chain of title to determine whether any interest predating the effective date of the root of title is identified there. The General Assembly drafted the Marketable Title Act to provide for extinguishment of old interests by operation of law in service of its purpose to encourage reliance on a record chain of title. We therefore presume that operation of the Marketable Title Act satisfies that goal. {¶ 40} Our reading of R.C. 5301.49(D) in Heifner, 4 Ohio St. 3d 49 , 446 N.E.2d 440 , did give rise to the possibility that a title transaction outside the surface owner’s chain of title would leave a marketable record title subject to a mineral interest that predates the effective date of the root of title, but the surviving interest will nevertheless be accessible in the recorded property records. Some 15  SUPREME COURT OF OHIO commentators have suggested that Heifner was an impetus for the enactment of the Dormant Mineral Act, see Stewart, When the Shale Gale Hit Ohio, 43 Cap.U.L.Rev. at 440, fn. 46, but there is no indication in the statutory language that the General Assembly enacted the Dormant Mineral Act to remedy an inadequacy in the Marketable Title Act’s service of its codified legislative purpose. Notably, the General Assembly did not amend the Marketable Title Act in response to Heifner to define the subset of title transactions that could constitute a saving event as those appearing within the chain of title upon which record marketable title was based. A more reasonable explanation is that the legislature intended the Dormant Mineral Act to provide surface owners an additional mechanism to accomplish reunification of dormant mineral interests with the surface estate in order to promote the use of natural resources when those interests could not be extinguished under the Marketable Title Act. {¶ 41} Less than two years ago, this court decided a discretionary appeal that involved claims that a severed mineral interest had been both abandoned under the Dormant Mineral Act and extinguished under the Marketable Title Act. See Blackstone v. Moore, 155 Ohio St. 3d 448 , 2018-Ohio-4959, 122 N.E.3d 132 . The claim under the Marketable Title Act hinged on R.C. 5301.49(A), which states that marketable record title remains subject to interests that are inherent in the chain of title, “ ‘provided that a general reference * * * to * * * interests created prior to the root of title shall not be sufficient to preserve them, unless specific identification be made therein of a recorded title transaction which creates such * * * interest.’ ” Blackstone at ¶ 11, quoting the statute. The court of appeals held that reservation language in a 1969 deed that appeared in the surface owner’s chain of title preserved the mineral interest under that provision. The issue before this court was the meaning of “specific identification” in R.C. 5301.49(A), as the surface owner argued that the reference in the 1969 deed was not sufficiently specific to preserve the mineral interest. We rejected that argument. But we did not question that 16  January Term, 2020 severed mineral interests may be extinguished under the Marketable Title Act, despite the concurrent applicability of the Dormant Mineral Act. {¶ 42} Justice DeGenaro concurred separately in Blackstone to emphasize what she viewed as “the narrow scope” of the holding. Id. at ¶ 19 (DeGenaro, J., concurring). She characterized the holding as not “hing[ing] on the nature of the interest” and cautioned against reading the opinion “to implicitly hold that the more general Marketable Title Act continues to apply to mineral interests following the enactment of the Dormant Mineral Act.” Id. While appellants seize on that concurring opinion to argue that Blackstone is irrelevant to the question now before this court, the concurring opinion is not binding precedent. See, e.g., In re Adoption of Peshek, 143 Ohio App. 3d 839 , 843, 759 N.E.2d 411 (2d Dist.2001). Furthermore, we may not ignore that, in Blackstone, a majority of this court expressly affirmed a judgment that a severed mineral interest had been preserved under the Marketable Title Act. Appellants have not preserved a due-process argument {¶ 43} Appellants state in their merit brief that an owner of a severed mineral interest is entitled to due process of law before the owner can be deprived of that interest. They do not, however, develop any specific argument with respect to due process, nor does it appear that they did so in either the trial court or the court of appeals. It is well settled that a party who fails to raise an argument in the court below waives or forfeits the right to raise it here. Niskanen v. Giant Eagle, Inc., 122 Ohio St. 3d 486 , 2009-Ohio-3626, 912 N.E.2d 595 , ¶ 34, citing State ex rel. Zollner v. Indus. Comm., 66 Ohio St. 3d 276 , 278, 611 N.E.2d 830 (1993). But even if appellants had raised the question below, any suggestion that continued application of the Marketable Title Act to severed mineral interests violates due process is beyond the proposition of law this court accepted for review, and we decline to consider it. See New Riegel Local School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng., Inc., 157 Ohio St. 3d 164 , 2019-Ohio-2851, 133 N.E.3d 17  SUPREME COURT OF OHIO 482, ¶ 32; Wesolowski v. Broadview Hts. Planning Comm., 158 Ohio St. 3d 58 , 2019-Ohio-3713, 140 N.E.3d 545 , ¶ 28. Conclusion {¶ 44} Because there is no irreconcilable conflict between the general provisions of the Marketable Title Act as applied to severed mineral interests and the Dormant Mineral Act, both acts retain effect. The Marketable Title Act and the Dormant Mineral Act afford independent procedures, either of which may be used to effect the termination of a severed mineral interest, depending on the circumstances of the case and the time that has elapsed. We therefore affirm the judgment of the Seventh District Court of Appeals, which reversed the Monroe County Court of Common Pleas’ entry of summary judgment, and we remand this matter to the trial court for consideration of the Wests’ claim under the Marketable Title Act. Judgment affirmed. O’CONNOR, C.J., and DEWINE and STEWART, JJ., concur. KENNEDY, J., dissents, with an opinion joined by DONNELLY, J. FISCHER, J., dissents. _________________ KENNEDY, J., dissenting. {¶ 45} Because the 1973 amendment to the Marketable Title Act, R.C. 5301.47 et seq., is substantively irreconcilable with subsequent amendments to the statute enacted by the Dormant Mineral Act, R.C. 5301.56, the procedures of the Dormant Mineral Act control in determining whether a severed interest in oil and gas has been reunited with the surface estate. I therefore disagree with the majority’s holding that the Marketable Title Act and the Dormant Mineral Act create independent, alternative statutory mechanisms to deprive a mineral-interest holder of private property. For these reasons, I dissent and would reverse the judgment of the Seventh District Court of Appeals. 18  January Term, 2020 The Marketable Title Act {¶ 46} The General Assembly enacted the Marketable Title Act in 1961 with “the legislative purpose of simplifying and facilitating land title transactions by allowing persons to rely on a record chain of title.” R.C. 5301.55. It sought to accomplish this purpose by providing that marketable record title—an unbroken chain of title to an interest in land for 40 years or more, R.C. 5301.48—“shall be held by its owner and shall be taken by any person dealing with the land free and clear of all interests, claims, or charges whatsoever, the existence of which depends upon any act, transaction, event, or omission that occurred prior to the effective date of the root of title.” R.C. 5301.50. The existence of marketable record title “operates to extinguish” all other prior interests, R.C. 5301.47(A), which “are hereby declared to be null and void,” R.C. 5301.50. {¶ 47} The Marketable Title Act also provided that the existence of marketable title did not extinguish a prior interest if a saving event preserving that interest appeared in the record chain of title—i.e., the interest was specifically identified in the muniments of title in a subsequent title transaction, the holder recorded a notice claiming the interest, or the interest “[arose] out of a title transaction which has been recorded subsequent to the effective date of the root of title.” R.C. 5301.48 and 5301.49. {¶ 48} The General Assembly amended the Marketable Title Act in 1973 “to enable property owners to clear their titles of disused mineral interests,” excluding coal rights. Am.S.B. No. 267, 135 Ohio Laws, Part I, 942-943. However, the shortcomings of this statutory mechanism to terminate unused mineral interests soon became apparent. {¶ 49} Our decision in Heifner v. Bradford, 4 Ohio St. 3d 49 , 446 N.E.2d 440 (1983), highlighted how the Marketable Title Act failed to extinguish all dormant severed mineral interests. Heifner involved claims to oil and gas arising from two independent chains of title. A 1916 deed transferred the surface estate 19  SUPREME COURT OF OHIO while reserving the oil and gas rights. The surface owner transferred the property in 1936 through a deed that did not mention the reservation, which came to exist in a separate chain of title through affidavits of transfer recorded in 1957. The surface owner had unbroken title to the property—including the oil and gas rights—from the 1936 root of title. However, we held that the oil and gas reservation was not extinguished by operation of the Marketable Title Act, because “a ‘marketable title,’ as defined in R.C. 5301.47(A) and 5301.48, is subject to an interest arising out of a ‘title transaction’ under R.C. 5301.49(D) which may be part of an independent chain of title.” Id. at 52-53. {¶ 50} This court’s interpretation of the Marketable Title Act to sustain an oil and gas interest that was created before the root of title but existed outside the surface owner’s chain of title “was ‘[t]he impetus for the creation of the [Dormant Mineral Act],’ ” R.C. 5301.56. Corban v. Chesapeake Exploration, L.L.C., 149 Ohio St. 3d 512 , 2016-Ohio-5796, 76 N.E.3d 1089 , ¶ 61 (Kennedy, J., concurring in part), quoting Wendt v. Dickerson, 5th Dist. Tuscarawas No. 2014 AP 01 0003, 2014-Ohio-4615, ¶ 21. As one commentator has explained, after Heifner, “it became obvious that the Ohio Marketable Title Act would not be an effective mechanism for clarifying or terminating title to ancient mineral claims.” Stewart, When the Shale Gale Hit Ohio: The Failures of the Dormant Mineral Act, Its Heroic Interpretations, and Grave Choices Facing the Supreme Court, 43 Cap.U.L.Rev. 435, 440 (2015), fn. 46. The Dormant Mineral Act {¶ 51} The 1989 version of the Dormant Mineral Act provided that a severed mineral interest was “deemed abandoned and vested in the owner of the surface” if none of the following applied: (1) the mineral interest was in coal or was coal-related, (2) the mineral interest was held by the United States, the state, or any other political body, or (3) a saving event occurred within the statutorily provided 20  January Term, 2020 20-year period. See former R.C. 5301.56, Sub.S.B. No. 223, 142 Ohio Laws, Part I, 981, 985-988. {¶ 52} The saving events provided by the statute were: (i) The mineral interest has been the subject of a title transaction that has been filed or recorded in the office of the county recorder of the county in which the lands are located; (ii) There has been actual production or withdrawal of minerals by the holder from the lands, from lands covered by a lease to which the mineral interest is subject, or, in the case of oil or gas, from lands pooled, unitized, or included in unit operations, under sections 1509.26 to 1509.28 of the Revised Code, in which the mineral interest is participating, provided that the instrument or order creating or providing for the pooling or unitization of oil or gas interests has been filed or recorded in the office of the county recorder of the county in which the lands that are subject to the pooling or unitization are located; (iii) The mineral interest has been used in underground gas storage operations by the holder; (iv) A drilling or mining permit has been issued to the holder, provided that an affidavit that states the name of the permit holder, the permit number, the type of permit, and a legal description of the lands affected by the permit has been filed or recorded, in accordance with section 5301.252 of the Revised Code, in the office of the county recorder of the county in which the lands are located; (v) A claim to preserve the interest has been filed in accordance with division (C) of this section; 21  SUPREME COURT OF OHIO (vi) In the case of a separated mineral interest, a separately listed tax parcel number has been created for the mineral interest in the county auditor’s tax list and the county treasurer’s duplicate tax list in the county in which the lands are located. Id. These saving events are now codified at R.C. 5301.56(B)(3). {¶ 53} “In enacting the 1989 law, the General Assembly sought to help clear title to dormant mineral interests and to encourage the development of Ohio’s mineral resources by allowing parties to rely on a record chain of title to them. See R.C. 5301.55.” Corban, 149 Ohio St. 3d 512 , 2016-Ohio-5796, 76 N.E.3d 1089 , at ¶ 27 (lead opinion). {¶ 54} However, some of the saving events provided in the 1989 statute could occur only outside the chain of title, and a majority of this court concluded in Corban that the General Assembly did not intend for the Dormant Mineral Act to be self-executing when it provided for qualifying mineral interests to be “deemed abandoned.” Id. at ¶ 27-28 (lead opinion); id. at ¶ 43 (Kennedy, J., concurring in part). “Because ‘deemed’ means only that the mineral interest is presumed abandoned, judicial action, typically by way of a quiet-title action, was required by the surface owner for a conclusive determination that the mineral interest was abandoned and vested in the surface owner.” Albanese v. Batman, 148 Ohio St. 3d 85 , 2016-Ohio-5814, 68 N.E.3d 800 , ¶ 18. {¶ 55} The General Assembly’s use of “abandoned” in the Dormant Mineral Act instead of “extinguished” as in the Marketable Title Act was essential to this conclusion. At common law, a severed mineral interest was not extinguished or terminated by the owner’s failure to produce oil and gas, but it could be abandoned upon proof that the owner intended to relinquish it. See 1A Summers, The Law of Oil and Gas, Section 8.4, at 139 (3d Ed.2004); Beer v. Griffith, 61 Ohio St.2d 119, 399 N.E.2d 1227 (1980), paragraph one of the syllabus. The mere lapse 22  January Term, 2020 of time without using the property could be probative of that intent but was not by itself sufficient to prove that abandonment occurred. See Junction RR. Co. v. Ruggles, 7 Ohio St. 1 , 10-11 (1857). “Abandoned” therefore had a specific meaning at common law, and “ ‘where a statute uses a word which has a definite meaning at common law, it will be presumed to be used in that sense and not in the loose popular sense.’ ” Thompson v. Community Mental Health Ctrs. of Warren Cty., Inc., 71 Ohio St. 3d 194 , 195, 642 N.E.2d 1102 (1994), quoting Richardson v. Doe, 176 Ohio St. 370 , 372-373, 199 N.E.2d 878 (1964). For this reason, we have recognized that the General Assembly did not intend to extinguish dormant mineral interests outside the chain of title—and beyond discovery in a title search— automatically and by operation of law regardless of the intent of the holder; rather, the 1989 law required a judicial finding that the mineral interest was abandoned and deemed vested in the surface owner. Albanese at ¶ 18; Corban at ¶ 28 (lead opinion); id. at ¶ 88 (Kennedy, J., concurring in part). {¶ 56} Therefore, under the 1989 law, the General Assembly intended for dormant mineral interests to be terminated within the chain of title and with minimal procedural protections for the mineral-interest holder. {¶ 57} The legislature provided even more protections to the mineral- interest holder against an involuntary abandonment when it amended the Dormant Mineral Act in 2006 to enact the current version of R.C. 5301.56(E), which provides: Before a mineral interest becomes vested under division (B) of this section in the owner of the surface of the lands subject to the interest, the owner of the surface of the lands subject to the interest shall do both of the following: (1) Serve notice by certified mail, return receipt requested, to each holder or each holder’s successors or assignees, at the last 23  SUPREME COURT OF OHIO known address of each, of the owner’s intent to declare the mineral interest abandoned. If service of notice cannot be completed to any holder, the owner shall publish notice of the owner’s intent to declare the mineral interest abandoned at least once in a newspaper of general circulation in each county in which the land that is subject to the interest is located. The notice shall contain all of the information specified in division (F) of this section. (2) At least thirty, but not later than sixty days after the date on which the notice required under division (E)(1) of this section is served or published, as applicable, file in the office of the county recorder of each county in which the surface of the land that is subject to the interest is located an affidavit of abandonment that contains all of the information specified in division (G) of this section. {¶ 58} The mineral-interest holder has 60 days from the date of service or publication of the surface owner’s intent to declare the mineral interest abandoned to file either a claim to preserve the mineral interest or an affidavit that identifies a saving event that has occurred within the 20 years immediately preceding the date on which the notice was served. R.C. 5301.56(H)(1). Only after the mineral- interest holder has failed to respond can the mineral interest finally be deemed abandoned and vested in the surface owner. R.C. 5301.56(H)(2). The Conflicting Amendments {¶ 59} Having reviewed the text and legislative history of the Marketable Title Act as amended by the Dormant Mineral Act, we consider the question presented by this case: do the Marketable Title Act and the Dormant Mineral Act establish independent, alternative means to terminate severed mineral interests, or 24  January Term, 2020 is the Dormant Mineral Act the sole statutory means to reunite such interests with the surface estate? {¶ 60} R.C. 1.52(B) guides us in answering this question and provides, “If amendments to the same statute are enacted at the same or different sessions of the legislature, one amendment without reference to another, the amendments are to be harmonized, if possible, so that effect may be given to each.” It further states, “If the amendments are substantively irreconcilable, the latest in date of enactment prevails. * * * Amendments are irreconcilable only when changes made by each cannot reasonably be put into simultaneous operation.” {¶ 61} By using “abandoned” rather than “extinguished,” by creating distinct saving events under the Marketable Title Act and the Dormant Mineral Act, and by enacting a notice provision to protect the mineral-interest holder’s property rights, the General Assembly created a specific statutory mechanism to terminate dormant mineral interests that conflicts with and therefore must supersede the Marketable Title Act. {¶ 62} The Marketable Title Act does not consider the intent of the mineral- interest holder but rather purports to extinguish a qualifying mineral interest even if the owner intended to maintain it—and even if the mineral-interest holder is actively producing oil and gas from it. In contrast, the Dormant Mineral Act focuses on the mineral-interest holder’s intent to abandon the unused interest, as manifested by the holder’s response or failure to respond to the surface holder’s service of its intent to declare the mineral interest abandoned. {¶ 63} And while the saving events preserving property interests from extinguishment under the Marketable Title Act must appear in the county land records, the Dormant Mineral Act provides saving events that occur wholly outside those records, including the actual production of oil or gas or the use of the mineral interest in underground-gas-storage operations. R.C. 5301.56(B)(3)(b) and (c). These saving events also function differently. If both acts applied to oil-and-gas 25  SUPREME COURT OF OHIO interests, a severed mineral interest could be extinguished under the Marketable Title Act absent a saving event after the root of title, yet not be abandoned under the Dormant Mineral Act because a saving event listed in R.C. 5301.56(B)(3) occurred within the preceding 20 years. Or a mineral interest could survive under the Marketable Title Act because it was mentioned in the muniments of title subsequent to the root of title but nonetheless be deemed abandoned due to the lack of a saving event during a subsequent 20-year period. {¶ 64} Lastly, the Dormant Mineral Act protects the property rights of mineral-interest holders by requiring the service of notice before that interest may be deemed abandoned and vested in the surface owner. R.C. 5301.56(E). In contrast to the Marketable Title Act, which provides no such protection, see R.C. 5301.48, the Dormant Mineral Act preserves mineral interests when the owner simply signals its intent to retain them—for example, by exploiting the mineral interest by producing oil and gas or by filing a notice of that intent, see R.C. 5301.56(B)(3)(b) and (e). In addition to circumventing these procedural protections, applying the Marketable Title Act and the Dormant Mineral Act simultaneously can create needless confusion among mineral-interest holders and surface owners alike regarding who retains the oil and gas rights. The General Assembly enacted the Dormant Mineral Act to encourage the development of Ohio’s oil and gas resources by clearing title to unused mineral interests while preserving the holder’s private property. See Stewart, When the Shale Gale Hit Ohio, 43 Cap.U.L.Rev. at 440-441. Holding that the Marketable Title Act may be used to extinguish oil and gas interests would do nothing more than frustrate the legislature’s purposes in enacting the Dormant Mineral Act. {¶ 65} For all these reasons, the amendments enacted in the Dormant Mineral Act are substantively irreconcilable pursuant to R.C. 1.51 with the 1973 amendment to the Marketable Title Act and cannot reasonably be put into simultaneous operation with it. Further, the Dormant Mineral Act is the more 26  January Term, 2020 recent of the amendments. The General Assembly enacted the Marketable Title Act in 1961 and made its provisions applicable to oil-and-gas interests in 1973. The Dormant Mineral Act amended the Marketable Title Act in 1989 and 2006. As the more recent provision, the Dormant Mineral Act controls over the Marketable Title Act and provides the sole statutory mechanism to terminate severed mineral interests in this state. {¶ 66} Here, the surface owners sought a declaratory judgment that the severed mineral interest had been extinguished by operation of law under the Marketable Title Act. However, even if we assume that there has been no saving event under the Dormant Mineral Act, the surface owners may not reunite the severed mineral interest with the surface estate unless they first comply with the notice and service provisions of R.C. 5301.56(E). There is no evidence that the surface owners have done so here. {¶ 67} Therefore, I would reverse the judgment of the court of appeals and reinstate the trial court’s judgment in favor of the mineral-interest owners. Because the majority does not, I dissent. DONNELLY, J., concurs in the foregoing opinion. _________________ Yoss Law Office, L.L.C., and Ryan M. Regel, for appellees. Charles H. Bean, for appellants. Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A., Gregory W. Watts, and Matthew W. Onest, urging affirmance for amici curiae Cassandra Ridenour, Senterra, Ltd., David Cain, Julia Cain, Peppertree Farms, L.L.C., Paines Run, L.L.C., Paul E. Morrison, and Vesta G. Morrison. Theisen Brock, L.P.A., and Daniel P. Corcoran, urging affirmance for amici curiae Allen B. Miller, Matilda J. Miller, Craig M. Miller, Tina E Miller, Brenda D. Thomas, Kevin M. Thomas, Kerry R. Hartline, Mary E. Hartline, Doris Craig, Paul Craig, Eleanor Craig, Nina Ice, Terry Ice, Sheila Stollar, Roger Stollar, Lisa 27  SUPREME COURT OF OHIO Meyer, Kenneth Meyer Jr., Helen Craig, Evelyn Craig, Carissa R. Baker, Corey A. Stollar, Shelba Wills, Donald Carl Baker, Debra Kay Bowen, Ruth Ellen Workman, Donna J. Baker Hughes, Ronald Eugene Baker, Linda B. Wilcox, James D. Baker, Lana S. Baker, William Stevens, Danny Offenberger, Jeffrey Stevens, Ricky Allen Baker, Randy Lee Baker, Diana Bohn, Kathy Sue Rainer, Gary Dale Baker, Danny Ray Baker, and Shari Siddle. Thomas A. Hill and Joseph N. Spano, urging affirmance for amicus curiae Eric Petroleum Corporation. Jackson Kelly, P.L.L.C., Clay K. Keller, and Andrew N. Schock, urging reversal for amici curiae Ascent Resources-Utica, L.L.C., and Gulfport Energy Corporation. _________________ 28

2020-12-02 14:12:02.857202+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2020/2020-Ohio-5480.pdf

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Steele v. Harris, Slip Opinion No. 2020-Ohio-5480.] NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published. SLIP OPINION NO. 2020-OHIO-5480 STEELE, APPELLANT, v. HARRIS, WARDEN, APPELLEE. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Steele v. Harris, Slip Opinion No. 2020-Ohio-5480.] Habeas corpus—Inmate has not alleged deviation from jurisdictional requirements in his case and therefore has failed to state claim cognizable in habeas— Court of appeals’ dismissal of petition affirmed. (No. 2020-0151—Submitted August 18, 2020—Decided December 2, 2020.) APPEAL from the Court of Appeals for Trumbull County, No. 2019-T-0066, 2019-Ohio-4839. ________________ Per Curiam. {¶ 1} Appellant, Sean M. Steele, an inmate at the Trumbull Correctional Institution, appeals the judgment of the Eleventh District Court of Appeals dismissing his petition for a writ of habeas corpus. We affirm.  SUPREME COURT OF OHIO Background {¶ 2} In September 1999, Steele was charged with two counts of aggravated murder in Franklin County Juvenile Court. Steele was 15 years old at the time of the offenses. In November 1999, the juvenile court continued the case for an amenability hearing after finding probable cause to believe that Steele committed the offenses. Following an amenability hearing held in December 1999, the juvenile court determined that Steele was not amenable to rehabilitation as a juvenile and that the safety of the community may require Steele’s incarceration beyond the age of majority. Therefore, the court transferred the case to the general division of the common pleas court (“adult court”). {¶ 3} After the transfer, Steele was indicted in adult court on four counts of aggravated murder. He was acquitted of those charges but convicted of two counts of murder, a lesser included offense. The trial court sentenced Steele to an aggregate prison term of 30 years to life. {¶ 4} On September 24, 2019, Steele filed a petition for a writ of habeas corpus against Warden Brandeshawn Harris in the Eleventh District Court of Appeals. Steele alleged that his transfer from juvenile court to adult court was void and that therefore, the resulting convictions were also void, under three theories. {¶ 5} First, Steele asserted that the juvenile court could not assess whether he was amenable to rehabilitation until it first undertook efforts at rehabilitation. Therefore, according to Steele, the juvenile court failed to satisfy the preconditions for the adult court to obtain lawful jurisdiction. Second, Steele cited Apprendi v. New Jersey, 530 U.S. 466 , 490, 120 S. Ct. 2348 , 147 L. Ed. 2d 435 (2000), in which the United States Supreme Court held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. Steele claimed that transferring a case from juvenile court serves to increase the maximum penalty (because the maximum penalty in juvenile court is commitment 2  January Term, 2020 to the Department of Youth Services until the age of 21) and that the facts relevant to the transfer decision therefore should have been submitted to a jury. Third, Steele argued that transferring a juvenile to adult court creates a presumption of guilt, in violation of the Fourteenth Amendment to the United States Constitution. {¶ 6} In November 2019, the court of appeals granted Harris’s motion for summary judgment. The court noted that Steele had unsuccessfully challenged the bindover decision in his first direct appeal, and it therefore held that his habeas petition was barred by res judicata. 2019-Ohio-4839, ¶ 6, 19. In addition, the court of appeals rejected Steele’s three theories on the merits. Id. at ¶ 20-22. {¶ 7} Steele filed a motion for reconsideration, which the court of appeals denied. Steele then appealed to this court. Legal analysis Standard of review {¶ 8} This court reviews de novo a decision granting summary judgment in a habeas corpus case. State ex rel. Shafer v. Wainwright, 156 Ohio St. 3d 559 , 2019- Ohio-1828, 130 N.E.3d 268 , ¶ 7. However, before we review the court of appeals’ application of res judicata, which is a merits decision, we will consider whether the petition states a claim within our jurisdiction in the first place. Statutory framework {¶ 9} A “delinquent” child is one who violates any federal or state law or ordinance of a political subdivision, other than a juvenile traffic offender, if the act would be an offense if committed by an adult. R.C. 2151.011(B)(12) and 2152.02(E)(1). The juvenile court has exclusive original jurisdiction concerning any child alleged to be a delinquent child. R.C. 2151.23(A)(1); In re M.P., 124 Ohio St. 3d 445 , 2010-Ohio-559, 923 N.E.2d 584 , ¶ 11. Thus, when a child is arrested for a felony or misdemeanor, proceedings regarding the child must initially be held in the juvenile court. R.C. 2152.03. 3  SUPREME COURT OF OHIO {¶ 10} If a child is old enough and is alleged to have committed an act that would be a felony if committed by an adult, the juvenile court may transfer its jurisdiction to the appropriate adult court for criminal prosecution (“a discretionary transfer”) or may be required to transfer jurisdiction (“a mandatory transfer”).1 Whether an alleged offender is subject to mandatory or discretionary transfer depends on such factors as the nature of the offense, the age of the child, and the child’s prior criminal history, if any. See R.C. 2152.12(A) and (B). These transfers occur through a statutory process that “is generally referred to as a bindover procedure.” State v. Wilson, 73 Ohio St. 3d 40 , 43, 652 N.E.2d 196 (1995). {¶ 11} If a child appears to be eligible for mandatory transfer, the juvenile court must conduct a hearing to determine whether the child meets the eligibility criteria and whether there is probable cause to believe that the child committed the act charged. R.C. 2152.12(A)(1); Juv.R. 30(A). But when considering a discretionary transfer, in addition to determining eligibility and probable cause, the juvenile court must determine whether the child is “amenable to care or rehabilitation within the juvenile system” and whether “the safety of the community may require that the child be subject to adult sanctions.” R.C. 2152.12(B)(3). Thus, a discretionary transfer “allows judges the discretion to transfer or bind over to adult court certain juveniles who do not appear to be amenable to care or rehabilitation within the juvenile system or appear to be a threat to public safety.” State v. Hanning, 89 Ohio St. 3d 86 , 90, 728 N.E.2d 1059 (2000). Before ordering a discretionary transfer, the juvenile court must conduct an amenability hearing. State v. D.W., 133 Ohio St. 3d 434 , 2012-Ohio-4544, 978 N.E.2d 894 , ¶ 10-12; R.C. 2152.12(B). In addition, before ordering the transfer, the juvenile court must order 1. R.C. 2152.02(C)(1) defines “child” as a person under the age of 18. In general, the minimum age for mandatory transfer is 16, R.C. 2152.10(A)(1)(a) and (A)(2), and the minimum age to be eligible for a discretionary transfer is 14, R.C. 2152.10(B). However, different age limits apply when the alleged offense is aggravated murder, murder, attempted aggravated murder, or attempted murder. See R.C. 2152.12(A)(1)(a). 4  January Term, 2020 an investigation into the child’s social history, education, family situation, and “any other factor bearing on whether the child is amenable to juvenile rehabilitation.” R.C. 2152.12(C). {¶ 12} An alleged child offender shall not be tried as an adult for a juvenile offense unless the person has been transferred pursuant to these statutory bindover procedures (or if the person was over the age of 21 when apprehended or taken into custody). R.C. 2152.12(H). Such a transfer “abates the jurisdiction of the juvenile court with respect to the delinquent acts alleged in the complaint,” so that all further proceedings relating to the charged act must be discontinued in the juvenile court, and “the case then shall be within the jurisdiction of the court to which it is transferred.” R.C. 2152.12(I). Steele’s petition fails to state a claim cognizable in habeas corpus {¶ 13} To be entitled to a writ of habeas corpus, a petitioner must show that he is being unlawfully restrained of his liberty and that he is entitled to immediate release from prison or confinement. R.C. 2725.01; State ex rel. Cannon v. Mohr, 155 Ohio St. 3d 213 , 2018-Ohio-4184, 120 N.E.3d 776 , ¶ 10. Habeas corpus is generally available only when the petitioner’s maximum sentence has expired and he is being held unlawfully. Heddleston v. Mack, 84 Ohio St. 3d 213 , 214, 702 N.E.2d 1198 (1998). And in those circumstances, the writ is not available when there is an adequate remedy in the ordinary course of the law. Billiter v. Banks, 135 Ohio St. 3d 426 , 2013-Ohio-1719, 988 N.E.2d 556 , ¶ 8. “However, there is a limited exception to the adequate-remedy requirement: ‘when a court’s judgment is void because it lacked jurisdiction, habeas is still an appropriate remedy despite the availability of appeal.’ ” Leyman v. Bradshaw, 146 Ohio St. 3d 522 , 2016-Ohio- 1093, 59 N.E.3d 1236 , ¶ 9, quoting Gaskins v. Shiplevy, 74 Ohio St. 3d 149 , 151, 656 N.E.2d 1282 (1995). {¶ 14} Steele’s habeas petition is premised on the latter theory. At one time, if a juvenile court failed to comply with the mandatory requirements of the bindover 5  SUPREME COURT OF OHIO statute, its purported transfer of the case to adult court was ineffective and any judgment issued by the transferee court was void. Johnson v. Timmerman-Cooper, 93 Ohio St. 3d 614 , 617, 752 N.E.2d 1153 (2001). And in such cases, the defendant could challenge in habeas a conviction following an improper transfer. Gaskins at 151. {¶ 15} However, we recently overruled Gaskins in part in Smith v. May, 159 Ohio St. 3d 106 , 2020-Ohio-61, 148 N.E.3d 542 . Whereas we had held in Gaskins that any deviation from the statutory bindover procedure could create a valid habeas corpus claim, we held in Smith that “[d]eviation from a bindover procedure gives rise to a potentially valid habeas claim only if the applicable statute clearly makes the procedure a prerequisite to the transfer of subject-matter jurisdiction to an adult court.” Id. at ¶ 29. Thus, we made clear in Smith that only a jurisdictional defect would be potentially cognizable in habeas corpus. The question is whether the procedural requirement “clearly establishes a barrier to the transfer of jurisdiction.” Id. at ¶ 32. {¶ 16} Applying the Smith standard to Steele’s three theories shows that he has failed to state a claim cognizable in habeas. He does not allege any deviations from jurisdictional requirements in his particular case. Rather, he challenges the constitutionality of the statutory scheme itself. {¶ 17} Under Steele’s first theory, he contends that the Ohio Constitution and Revised Code “categorically require juvenile courts to first provide children with care and rehabilitation before they may even consider whether children are amendable thereto.” In other words, Steele is asserting that a juvenile court may never bind over a first-time offender to adult court, for any offense. He draws this conclusion from the “purposes” and implications of the statute, not from any language in the statute. But he has not alleged that the juvenile-court judge deviated from a particular jurisdictional requirement in his case, which is a prerequisite for a habeas challenge under Smith. 6  January Term, 2020 {¶ 18} Likewise, in his second theory, he claims that under the Constitution and Apprendi, 530 U.S. at 490 , 120 S. Ct. 2348 , 147 L. Ed. 2d 435 , a jury must make the determinations required by R.C. 2152.12(B)(3), even though the statute does not provide for a jury. And his third premise—that the entire transfer system creates an unconstitutional presumption of guilt—is a challenge to the system itself, not a claim of a jurisdictional defect. {¶ 19} Based on our decision in Smith, we conclude that Steele has failed to state a claim cognizable in habeas corpus. It is well established that habeas corpus will not lie to challenge the constitutionality of a statute under which the defendant was convicted, so long as the court in which the defendant was convicted had jurisdiction to determine the constitutional question (in which case, the defendant has or had an adequate remedy by way of appeal). Fortune v. Reshetylo, 33 Ohio St. 2d 22 , 26, 294 N.E.2d 880 (1973). {¶ 20} For these reasons, we affirm the dismissal of Steele’s habeas corpus petition. Given our disposition of his petition, it is unnecessary for us to consider the remaining legal arguments presented in Steele’s petition and merit brief. Judgment affirmed. O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY, and STEWART, JJ., concur. _________________ Timothy Young, Ohio Public Defender, and Timothy B. Hackett, Assistant Public Defender, for appellant. Dave Yost, Attorney General, and Stephanie L. Watson, Assistant Attorney General, for appellee. _________________ 7

2020-12-02 14:12:05.986763+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2020/2020-Ohio-5476.pdf

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In re R.B., Slip Opinion No. 2020-Ohio-5476.] NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published. SLIP OPINION NO. 2020-OHIO-5476 IN RE R.B. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In re R.B., Slip Opinion No. 2020-Ohio-5476.] Juvenile law—Sex-offender-classification hearing—A juvenile court does not lose jurisdiction to enter an order pursuant to R.C. 2152.84 once the juvenile reaches the age of 21—While a juvenile court’s failure to hold a hearing in compliance with R.C. 2152.84 in a timely manner may support other claims for relief, the statutory directive that the hearing be held upon a juvenile’s completion of his disposition is not a jurisdictional requirement—A hearing may take place within a reasonable amount of time after a juvenile completes his disposition—Court of appeals’ judgment reversed and cause remanded. (No. 2019-1325—Submitted August 5, 2020—Decided December 2, 2020.) APPEAL from the Court of Appeals for Hamilton County, Nos. C-170622 and C-170623, 2019-Ohio-3298. _______________________  SUPREME COURT OF OHIO DEWINE, J. {¶ 1} This case involves the procedures by which a juvenile is classified as a sex offender. When R.B. was a teenager, he sexually abused his two four-year- old cousins. The juvenile court adjudicated R.B. delinquent, classified him as a sex offender, and imposed a disposition that included probation until his 21st birthday. In juvenile cases, the court is required to hold a second sex-offender-classification hearing upon the juvenile’s completion of the disposition. The court held the second hearing and kept R.B.’s classification the same. R.B. challenges the timing of that hearing. {¶ 2} R.B. first contends that the juvenile court was required to hold the review hearing and issue its decision on the exact day his disposition ended (in other words, the day that his term of probation expired). He says that once he completed his disposition, the court lost jurisdiction to continue his classification, and he may no longer be classified as a sex offender. We disagree. The language “upon completion of the disposition,” R.C. 2152.84(A)(1), does not require a hearing and order on the exact day the disposition ends. Rather, the court’s review may take place within a reasonable time of the juvenile’s completion of his disposition. {¶ 3} Second, R.B. argues that the juvenile court lacked jurisdiction because its order continuing his classification was not issued until after his 21st birthday. Here, too, we disagree. By statute, the juvenile court maintains jurisdiction to review a juvenile’s sex-offender classification after the juvenile reaches the age of 21. See R.C. 2151.23(A)(15). Because the court of appeals concluded that the juvenile court lacked jurisdiction, we reverse its judgment and remand the case for further proceedings. I. The juvenile sex-offender-classification process {¶ 4} When a juvenile commits a sex offense, the juvenile court has the ability to classify the juvenile as a sex offender. See generally R.C. 2152.82 2  January Term, 2020 through 2152.86; 2007 Am.Sub.S.B. No. 10 (Ohio’s Adam Walsh Act). A juvenile who has been classified as a sex offender has certain legal obligations, such as registering and periodically verifying his address in person with the sheriff. See R.C. 2950.07. The frequency with which the juvenile must report and the duration of his reporting requirements depend on the level of the classification imposed. Id. {¶ 5} Unlike adult offenders, whose classification levels are based solely on the underlying offense, see R.C. 2950.01, the juvenile court has discretion to determine the appropriate classification for a juvenile offender, see R.C. 2152.83(A)(2) and (B)(2). Additionally, while adult classifications flow directly from the conviction and are not subject to modification, the juvenile court retains jurisdiction to review a juvenile offender’s classification. The classification process is set forth in a series of statutes (the “classification statutes”). The juvenile court conducts a hearing at the time of the juvenile’s disposition, see R.C. 2152.83, and at the time the juvenile completes the disposition, see R.C. 2152.84. After that, the juvenile may petition the juvenile court for review every three or five years. See R.C. 2152.85. {¶ 6} R.B.’s disposition ended on his 21st birthday. A Hamilton County juvenile-court magistrate held R.B.’s completion-of-disposition hearing two months before his birthday and issued orders continuing his sex-offender classification the week before he turned 21. The juvenile court adopted the magistrate’s decision to maintain R.B.’s sex-offender classification, but it did not do so until after R.B.’s disposition had ended and he had turned 21. R.B. therefore contends that the classification order is invalid and that he does not have a duty to register as a sex offender. {¶ 7} In order to better understand R.B.’s challenge, it is helpful to lay out the relevant portions of the statutes outlining the sex-offender-classification process for juveniles before we delve further into the facts of this case. 3  SUPREME COURT OF OHIO {¶ 8} R.C. 2152.83 addresses what we will refer to as the “initial classification hearing.” With respect to juveniles who, like R.B., committed their offenses at the age of 14 or 15, the court has discretion whether to hold a classification hearing or impose a classification at all. R.C. 2152.83(B)(1) and (2). If the court decides to conduct a hearing, the statute provides for it to be held “at the time of disposition of the child or, if the court commits the child for the delinquent act to the custody of a secure facility, * * * at the time of the child’s release from the secure facility.” R.C. 2152.83(B)(1). Then “upon completion of the hearing,” the court may classify the juvenile as a sex offender or may decline to do so. R.C. 2152.83(B)(2). If the court imposes a classification, the court must notify the juvenile of his registration and reporting requirements. R.C. 2152.83(C)(3). The court is also required to tell the juvenile that a second hearing will be held at the end of his disposition pursuant to R.C. 2152.84 and that his classification may be modified or terminated at that time. R.C. 2152.83(C)(3). {¶ 9} R.C. 2152.83(E) provides that the initial classification order “shall remain in effect for the period of time specified in section 2950.07 of the Revised Code, subject to a modification or termination of the order under section 2152.84 of the Revised Code.” R.C. 2950.07 outlines the duration of a juvenile offender’s duty to register. For a juvenile classified as a Tier I offender, the duty to register lasts for 10 years; for a Tier II juvenile offender, the obligation continues for 20 years; and a juvenile classified as a Tier III offender must register for life. R.C. 2950.07(B). Further, “[t]he child’s attainment of eighteen or twenty-one years of age does not affect or terminate the order, and the order remains in effect for the period of time described in this division.” R.C. 2152.83(E). {¶ 10} The juvenile court must hold a second hearing to review the classification “upon completion of the disposition” (we will call this the “completion-of-disposition hearing”). R.C. 2152.84. The purpose of the hearing is 4  January Term, 2020 to review the effectiveness of the disposition and of any treatment provided for the child, to determine the risks that the child might re- offend, to determine whether the prior classification of the child as a juvenile offender registrant should be continued or terminated * * *, and to determine whether its prior determination * * * as to whether the child is a tier I sex offender/child-victim offender, a tier II sex offender/child-victim offender, or a tier III sex offender/child- victim offender should be continued or modified * * *. R.C. 2152.84(A)(1). “Upon completion of [this] hearing,” the court may either continue the juvenile’s previous classification, reduce the level of his classification, or terminate his classification altogether. R.C. 2152.84(A)(2). {¶ 11} Finally, R.C. 2152.85 allows a juvenile classified as a sex offender to petition the juvenile court at certain intervals to have his classification modified or removed (we will call this the “periodic-review provision”). The juvenile may first petition the court for review three years after the completion-of-disposition hearing. R.C. 2152.85(B)(1). The juvenile may petition the court a second time three years after the first petition was filed, R.C. 2152.85(B)(2), and then every five years after that for the duration of the registration period, R.C. 2152.85(B)(3). See also In re D.S., 146 Ohio St. 3d 182 , 2016-Ohio-1027, 54 N.E.3d 1184 , ¶ 36. {¶ 12} With that understanding, we turn to the history of this case. II. R.B.’s classification {¶ 13} When R.B. was 14 years old, he sexually abused his two four-year- old cousins. He confessed what he had done, and in October 2011, he was adjudicated delinquent on two counts of gross sexual imposition. The juvenile court held a dispositional hearing on December 2. The court placed R.B. on probation with a suspended commitment to the Ohio Department of Youth Services 5  SUPREME COURT OF OHIO that was to remain in place until he reached the age of 21. As a condition of probation, the court required R.B. to complete a residential treatment program. {¶ 14} The juvenile court issued an entry the following week continuing the case to January for the court to hold an initial sex-offender-classification hearing. After the hearing, the court classified R.B. as a Tier I offender. At that time, the court provided R.B. and his mother a form notifying them that as a result of R.B.’s classification, he would be required to register annually for a period of ten years. {¶ 15} After his initial classification hearing, R.B. continued to comply with his probation obligations. R.B. successfully completed the residential portion of his treatment program in February 2013 and reentered the community under an electronic-monitoring requirement. He attended counseling and sex-offender treatment on an outpatient basis. In July 2013, the probation department notified the court that R.B. had satisfied the terms of his probation. The court therefore ordered that R.B. “be released from official probation and placed on non-reporting probation with Monitored Time.” See R.C. 2929.01(Y) (monitored time is “a period of time during which an offender continues to be under the control of the sentencing court * * *, subject to no conditions other than leading a law-abiding life”). {¶ 16} R.B. stayed out of trouble and little happened in his case for another year. In July 2014, R.B. filed an application asking to have his record sealed, which the juvenile court denied two months later, noting that the “requisite requirements for eligibility have not yet been met” and that R.B. remained under a duty to register as a sex offender until 2022. {¶ 17} Following that decision, the court scheduled a completion-of- disposition hearing pursuant to R.C. 2152.84. The hearing was first set for November 19, 2014, but the matter was continued three times at the defense’s request. Then, on April 28, 2015, the court issued an entry stating that the defense’s request for reclassification had been “withdrawn.” The court did not hold the R.C. 6  January Term, 2020 2152.84 completion-of-disposition hearing or enter an order continuing or terminating R.B.’s classification at that time. {¶ 18} The court took no further action on R.B.’s classification until October 24, 2016, when the state filed a motion asking the juvenile court to hold a completion-of-disposition hearing. R.B. objected to the state’s request, asserting that the juvenile court lacked jurisdiction to go forward with the hearing because it had not been held “upon completion of the disposition,” as required under R.C. 2152.84. {¶ 19} In January 2017, a juvenile-court magistrate held a hearing to determine whether the court had jurisdiction to conduct the completion-of- disposition hearing. R.B. contended that he had completed his disposition at the time he finished outpatient treatment and was released from his probation reporting obligations and that the hearing was therefore untimely. Alternatively, if the court determined that nonreporting probation was a valid dispositional order, then R.B. reasoned that he had not yet completed his disposition and the state’s attempt to hold the hearing was premature. {¶ 20} The juvenile-court magistrate determined that she could proceed with the completion-of-disposition hearing. R.B. filed objections, and the parties argued the matter before the juvenile-court judge. On March 6, 2017, the judge issued a decision finding that the court had jurisdiction to proceed with the completion-of-disposition hearing. The court concluded that R.B. remained on nonreporting probation with a suspended commitment to DYS and that R.B. was therefore still subject to the jurisdiction of the juvenile court. {¶ 21} The magistrate held the completion-of-disposition hearing on May 8, 2017, and issued orders on July 13 and 14, 2017, continuing R.B.’s Tier I classification. R.B. turned 21 years of age one week later, on July 20, 2017. {¶ 22} R.B. filed objections to the magistrate’s decision. The juvenile-court judge held a hearing on the objections in September and issued a written decision 7  SUPREME COURT OF OHIO the following month adopting the magistrate’s orders continuing R.B.’s Tier I classification. {¶ 23} R.B. appealed, asserting that his initial classification order was invalid, that the juvenile court lacked jurisdiction to hold the completion-of- disposition hearing because it did not take place at the time the disposition was completed, that the juvenile court violated R.B.’s due-process rights by not holding the completion-of-disposition hearing at the time that he had completed his treatment, and that the juvenile court abused its discretion in continuing R.B.’s classification. The First District Court of Appeals ordered further briefing on the question whether the juvenile court lost jurisdiction to adopt the magistrate’s order continuing R.B.’s classification once R.B. reached 21 years of age. The court of appeals concluded that the juvenile court lacked jurisdiction to issue orders continuing R.B.’s classification both because he had reached the age of 21 and because his disposition had ended when he turned 21. It therefore vacated the classification orders. 2019-Ohio-3298. Based on its resolution of the jurisdiction question, the court of appeals held that R.B.’s other arguments were moot and declined to address them. {¶ 24} We accepted the state’s appeal, which raised the following proposition of law: “Once a juvenile court makes an appropriate initial classification under R.C. 2152.83, it is permanently vested with jurisdiction to review the classification in accordance with R.C. 2152.84 and 2152.85.” See 157 Ohio St. 3d 1523 , 2019-Ohio-5327, 137 N.E.3d 102 . {¶ 25} R.B. filed a cross-appeal raising three propositions of law. We accepted discretionary review over one of them, which asserts that the completion- of-disposition hearing must be held at the time the juvenile completes treatment to comply with due process. Id. 8  January Term, 2020 III. The juvenile court does not lose jurisdiction to enter an order pursuant to R.C. 2152.84 when the juvenile reaches the age of 21 {¶ 26} We first take up the portion of the First District’s holding that the juvenile court lost jurisdiction to continue R.B.’s Tier I classification once he turned 21. {¶ 27} R.C. Chapter 2152 outlines the jurisdiction of juvenile courts with respect to delinquent children. The general rule is that a juvenile court has jurisdiction over juveniles who have been adjudicated delinquent until they reach the age of 21: The juvenile court has jurisdiction over a person who is adjudicated a delinquent child or juvenile traffic offender prior to attaining eighteen years of age until the person attains twenty-one years of age, and, for purposes of that jurisdiction related to that adjudication, except as otherwise provided in this division, a person who is so adjudicated a delinquent child or juvenile traffic offender shall be deemed a “child” until the person attains twenty-one years of age. R.C. 2152.02(C)(6); see also In re J.V., 134 Ohio St. 3d 1 , 2012-Ohio-4961, 979 N.E.2d 1203 , ¶ 23. R.B. would have us stop there and hold that the juvenile court lost jurisdiction to hold the completion-of-disposition hearing once he turned 21 and was no longer a “child” under R.C. 2152.02(C)(6). {¶ 28} That argument might be successful if that statute was the only source of the juvenile court’s jurisdiction. But another provision grants the juvenile court “exclusive original jurisdiction” to carry out its obligations under the sex-offender- classification statutes: “[t]o conduct the hearings, and to make the determinations, adjudications, and orders authorized or required under sections 2152.82 to 2152.86 9  SUPREME COURT OF OHIO and Chapter 2950. of the Revised Code regarding a child who has been adjudicated a delinquent child.” R.C. 2151.23(A)(15). In other words, the juvenile court has jurisdiction to conduct sex-offender-classification hearings and issue classification orders under the terms of the classification statutes. {¶ 29} R.B. picks up on the word “child” in R.C. 2151.23(A)(15). He contends that R.C. 2152.02(C)(6)—which states that a person who has been adjudicated delinquent “shall be deemed a ‘child’ until the person attains twenty- one years of age”—provides the meaning of the word “child” for purposes of R.C. 2151.23(A)(15). Because the statute authorizes the juvenile court to conduct hearings and issue classification orders “regarding a child,” R.C. 2151.23(A)(15), and a juvenile who has been adjudicated delinquent is only considered to be a child until he reaches the age of 21, R.C. 2152.02(C)(6), R.B. says the court’s jurisdiction to carry out its obligations under the classification statutes ends on a juvenile’s 21st birthday. {¶ 30} The difficulty with that reading is that, by their plain terms, the classification statutes extend a juvenile court’s authority over classification orders beyond a juvenile’s 21st birthday. As outlined above, the periodic-review provision allows the juvenile to petition the juvenile court to reduce or remove his classification at the following times: three years after the completion-of-disposition hearing; three years after the first petition; and every five years after that. R.C. 2152.85(B). The statute permits the juvenile registrant to petition the court for review as long as the classification remains in effect, which may in some cases be the rest of the juvenile’s life. See R.C. 2950.07(B)(1). Thus, the periodic-review provision necessarily grants the juvenile court the authority to issue classification orders beyond the juvenile’s reaching the age of 21. If we were to apply R.B.’s interpretation of “child” to the jurisdictional statute, we would be forced to conclude that the plain language of the classification statutes notwithstanding, a 10  January Term, 2020 juvenile loses his ability to have a classification removed as soon as he becomes an adult. {¶ 31} Thus, the language in R.C. 2152.02(C)(6) stating that a person who has been adjudicated delinquent “shall be deemed a ‘child’ until the person attains twenty-one years of age” cannot control the meaning of the word “child” as it is used in R.C. 2151.23(A)(15). We think the better reading comes from looking at how the word is used in conjunction with the surrounding text. The statute grants the juvenile court jurisdiction to conduct the hearings and issue the orders permitted by the classification statutes “regarding a child who has been adjudicated a delinquent child.” R.C. 2151.23(A)(15). The use of the words “has been” suggests a juvenile registrant need not still be a “child” for the court to have jurisdiction to review his classification but rather that the court has continuing jurisdiction to review the classifications of juvenile offenders who have been adjudicated delinquent. {¶ 32} We therefore conclude that R.C. 2151.23(A)(15) vests the juvenile court with jurisdiction to carry out its requirements under the classification statutes, independent of whether the “delinquent child” has reached the age of 21. {¶ 33} This court’s holding in State ex rel. Jean-Baptiste v. Kirsch, 134 Ohio St. 3d 421 , 2012-Ohio-5697, 983 N.E.2d 302 , does not compel a contrary result. That case dealt with the juvenile court’s imposition of an initial classification order pursuant to R.C. 2152.83. As noted above, that provision requires the court to impose the initial classification either as part of the dispositional order or at the time of the juvenile’s release from a secured facility. This court concluded that the juvenile court lacked statutory authority to impose the initial classification order after it had terminated the juvenile’s disposition and after the juvenile had reached the age of 21. Id. at ¶ 28. {¶ 34} In this case, the juvenile court had issued its initial classification under R.C. 2152.83 prior to R.B.’s 21st birthday and that classification remained in 11  SUPREME COURT OF OHIO effect for the duration of R.B.’s registration period. See R.C. 2152.83(E) (the initial classification order “shall remain in effect for the period of time specified in section 2950.07 of the Revised Code”). Thus, the imposition of the initial classification order in this case triggered the statutory-review process outlined in the classification statutes, and the juvenile court retained jurisdiction to review R.B.’s classification pursuant to R.C. 2151.23(A)(15). IV. The timing requirements of R.C. 2152.84 are not jurisdictional A. The meaning of “upon completion of the disposition” {¶ 35} The First District determined that R.B.’s disposition, by its own terms, ended at the same time he turned 21.1 2019-Ohio-3298 at ¶ 14. It concluded: Because the trial court did not complete the statutorily-required process for classifying R.B. prior to the completion of his disposition upon his turning 21, it had no jurisdiction to classify him as a Tier I offender. The initial classification order is not revived or still in effect, and therefore, there is no order in place requiring R.B. to register as a sex offender. Id. Thus, the court of appeals read the language “upon completion” in the statute as requiring the hearing to occur prior to the completion of the disposition. {¶ 36} R.B. contends that “upon completion” means the hearing must be held on the very day that the juvenile’s disposition ends—no earlier and no later. We find this to be an excessively technical reading of the word “upon.” Indeed, taken to its logical conclusion, such an interpretation would mean that if the 1. In his cross-appeal, R.B. raised a proposition of law in which he argued that the dispositional order of nonreporting probation with monitored time was not validly imposed. We declined to accept that proposition and therefore, for the purposes of answering the jurisdictional question, we assume without deciding that the First District was correct in holding that R.B. was under a valid disposition. 12  January Term, 2020 disposition ends upon the juvenile’s reaching the age of 21, the juvenile court would be foreclosed from holding the completion-of-disposition hearing altogether: under R.B.’s view, the court can’t hold it before the disposition is complete, but it loses jurisdiction to hold it as soon as R.B. turns 21. {¶ 37} Moreover, R.C. 2152.84 not only provides that the hearing be held “upon completion of the disposition,” R.C. 2152.84(A)(1), but also that the judge’s classification order be issued “upon completion of [the] hearing,” R.C. 2152.84(A)(2). Reading “upon” in the manner suggested by R.B. would require that the hearing be conducted on the day that the disposition ends and that the court issue its decision regarding the juvenile’s classification immediately after the hearing is complete, without any time to consider and review the evidence presented. In some jurisdictions, as in this case, the completion-of-disposition hearing and classification orders are issued by magistrate judges and then adopted or rejected by juvenile-court judges. It follows that under R.B.’s view, the magistrate would have to hold a hearing and issue its classification order, the parties would have to file objections, and the juvenile-court judge would have to rule on those objections and issue its own decision—all in the course of a single day. {¶ 38} Instead, we find that the phrase “upon completion” is given meaning by the surrounding language. R.C. 2152.84(A)(1) states that “upon completion of the disposition,” the judge “shall conduct a hearing to review the effectiveness of the disposition and of any treatment provided for the child * * *.” That the juvenile court is directed to review the effectiveness of the disposition and treatment suggests that the hearing may be held after the disposition and treatment have been completed. {¶ 39} Thus, we do not read the phrase “upon completion” to limit the juvenile court’s ability to conduct a completion-of-disposition hearing to a single day. The lack of more specific language lends itself to a reading that the juvenile court is directed to conduct the completion-of-disposition hearing within a 13  SUPREME COURT OF OHIO reasonable proximity—either before or after—the date the disposition is scheduled to end. B. The timing requirement of R.C. 2152.84 is not jurisdictional {¶ 40} R.B.’s argument fails for another reason: the requirement that the hearing be held “upon completion of the disposition” is not jurisdictional. The question whether the timing requirement is jurisdictional goes to the juvenile court’s subject-matter jurisdiction—its power to hear the case. See Pratts v. Hurley, 102 Ohio St. 3d 81 , 2004-Ohio-1980, 806 N.E.2d 992 , ¶ 34. As we have already explained, R.C. 2151.23(A)(15) grants the juvenile court “exclusive original jurisdiction * * * [t]o conduct the hearings, and to make the determinations, adjudications, and orders authorized or required” under the classification statutes. {¶ 41} R.B. focuses on the word “shall” in R.C. 2152.84(A)(1) (“upon completion of the disposition * * * the judge * * * shall conduct a hearing”). He contends that the timing requirements “must be read as mandatory and therefore jurisdictional.” {¶ 42} But not all mandatory provisions are jurisdictional in nature. Smith v. May, 159 Ohio St. 3d 106 , 2020-Ohio-61, 148 N.E.3d 542 , ¶ 31; State v. Martin, 154 Ohio St. 3d 513 , 2018-Ohio-3226, 116 N.E.3d 127 , ¶ 27. We see no language in R.C. 2152.84 indicating that a failure to comply with this timing requirement divests the juvenile court of jurisdiction to hold the hearing altogether. Nor does the statute specify a remedy for a court’s failure to adhere to the timing requirement. In the absence of language clearly stating that the failure to comply with the timing provision creates a jurisdictional barrier, this court will be reluctant to find one. See May at ¶ 24, citing Arbaugh v. Y & H Corp., 546 U.S. 500 , 515-516, 126 S. Ct. 1235 , 163 L. Ed. 2d 1097 (2006); Nucorp, Inc. v. Montgomery Cty. Bd. of Revision, 64 Ohio St. 2d 20 , 22, 412 N.E.2d 947 (1980). {¶ 43} This does not mean that the juvenile court may conduct the completion-of-disposition hearing any time it wants as long as the registration order 14  January Term, 2020 remains in effect. That would render the language “upon completion of the disposition” meaningless. (Indeed, the failure to hold a hearing within a reasonable time could affect the ability of the juvenile to seek further review of his classification pursuant to R.C. 2152.85, as the time for review under that section begins from the order following the completion-of-disposition hearing. R.C. 2152.85(B)(1).) If the juvenile court fails to conduct the mandatory R.C. 2152.84 completion-of-disposition hearing, the juvenile could file an action in procedendo to compel the court to hold the hearing. See In re Davis, 84 Ohio St. 3d 520 , 523, 705 N.E.2d 1219 (1999). Additionally, a juvenile may still object to noncompliance with the timing requirements for holding the hearing, that issue may be reviewed on direct appeal, and the court of appeals may determine an appropriate remedy for an untimely hearing. See May at ¶ 31. {¶ 44} But the question in this case is whether the juvenile court loses jurisdiction to hold the hearing based on an alleged failure to comply with a statutory timing requirement. We conclude that it does not. C. The effect of the completion-of-disposition hearing on the initial classification order {¶ 45} The First District held that because the juvenile court did not hold the completion-of-disposition hearing before R.B.’s disposition ended, R.B. was no longer under a valid classification order. 2019-Ohio-3298 at ¶ 14. The state contends that the initial classification order remained in effect pursuant to R.C. 2152.83(E) (the initial classification order “shall remain in effect for the period of time specified in section 2950.07 of the Revised Code, subject to a modification or termination of the order under section 2152.84 of the Revised Code”). {¶ 46} R.B. insists that the failure of a juvenile court to hold the R.C. 2152.84 completion-of-disposition hearing within a certain timeframe invalidates the initial classification order. He contends that under R.C. 2152.83(E), the initial classification order is “subject to” the provisions of R.C. 2152.84. Thus, in his 15  SUPREME COURT OF OHIO view, if the completion-of-disposition hearing is not held within the timeframe required by R.C. 2152.84, then the initial classification order ceases to have any effect. {¶ 47} The plain language of R.C. 2152.83(E) belies that conclusion. That provision says that the initial classification order is subject to modification or termination under R.C. 2152.84. Rather than suggest that the court’s failure to comply with the procedural requirements for the completion-of-disposition hearing voids the initial classification order, R.C. 2152.83(E) is explicit that the initial classification order remains in effect for the entire registration period unless it is modified or terminated. V. We decline to reach R.B.’s due-process argument {¶ 48} R.B. raised an assignment of error in the court of appeals contending that his due-process rights were violated as a result of the amount of time that passed between the date that he completed his treatment and the completion-of- disposition hearing. As noted above, the First District determined that this question was moot as a result of its conclusion that the juvenile court lacked jurisdiction to issue the order continuing R.B.’s classification. R.B. conceded this point in his brief in support of jurisdiction. Because there is no judgment below for us to review on the due-process question, we dismiss this proposition as having been improvidently allowed. VI. Conclusion {¶ 49} R.C. 2151.23(A)(15) grants the juvenile court jurisdiction to review classifications, hold hearings, and issue orders authorized under the classification statutes, and this jurisdiction necessarily extends beyond the juvenile’s having reached the age of 21. While the failure of the juvenile court to hold the R.C. 2152.84 hearing in a timely manner may support other claims for relief, we conclude that the statutory directive that the hearing be held “upon completion of the disposition” is not a jurisdictional requirement. We therefore reverse the 16  January Term, 2020 judgment of the court of appeals and remand the cause for that court to consider the assignments of error it previously deemed moot. Judgment reversed and cause remanded. KENNEDY, FRENCH, GALLAGHER, DONNELLY, and STEWART, JJ., concur. O’CONNOR, C.J., concurs in judgment only. EILEEN A. GALLAGHER, J., of the Eighth District Court of Appeals, sitting for FISCHER, J. _________________ Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula Adams, Assistant Prosecuting Attorney, for appellant and cross-appellee. Raymond T. Faller, Hamilton County Public Defender, and Julie Kahrs Nessler, Assistant Public Defender, for appellee and cross-appellant. Timothy Young, Ohio Public Defender, and Brooke M. Burns, Assistant Public Defender, urging affirmance for amici curiae Office of the Ohio Public Defender, Children’s Law Center, Justice for Children, Juvenile Law Center, National Juvenile Defender Center, and Professor Catherine Carpenter. Michael C. O’Malley, Cuyahoga County Prosecutor, and Daniel T. Van, Assistant Prosecuting Attorney, urging reversal for amicus curiae Ohio Prosecuting Attorneys Association. _________________ 17

2020-12-02 14:12:06.696647+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2020/2020-Ohio-5478.pdf

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Disciplinary Counsel v. Sarver, Slip Opinion No. 2020-Ohio-5478.] NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published. SLIP OPINION NO. 2020-OHIO-5478 DISCIPLINARY COUNSEL v. SARVER. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Disciplinary Counsel v. Sarver, Slip Opinion No. 2020-Ohio-5478.] Attorneys—Misconduct—Violations of the Rules of Professional Conduct— Prof.Cond.R. 3.4(c)’s prohibition against a lawyer’s knowing disobedience of an obligation under a tribunal’s rules applies to a lawyer’s conduct that occurs after a tribunal has issued a final order as well as to a lawyer’s conduct that occurs before or during litigation—Permanent disbarment. (No. 2020-0229—Submitted June 3, 2020—Decided December 2, 2020.) ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme Court, No. 2019-025. ______________ FISCHER, J. {¶ 1} Respondent, Jason Allan Sarver, of Columbus, Ohio, Attorney Registration No. 0082073, was admitted to the practice of law in Ohio in 2007. On November 28, 2018, we suspended him from the practice of law for two years, with  SUPREME COURT OF OHIO 18 months conditionally stayed, for engaging in a sexual relationship with an indigent client, lying about that relationship to the judge who was presiding over the client’s criminal case, and engaging in illegal activity by advising the client to turn off her phone’s GPS while there was an outstanding warrant for her arrest. Disciplinary Counsel v. Sarver, 155 Ohio St. 3d 100 , 2018-Ohio-4717, 119 N.E.3d 405 (“Sarver I”). {¶ 2} In a June 3, 2019 complaint, relator, disciplinary counsel, charged Sarver with filing a false affidavit of compliance with this court, continuing to practice law while under suspension, and committing other professional misconduct during the course of his suspension and the ensuing disciplinary investigation. {¶ 3} The parties entered into comprehensive stipulations of fact and misconduct, in which Sarver admitted that he committed all but one of the alleged rule violations. After a hearing, the board issued a report finding that Sarver committed all the charged misconduct and recommending that he be permanently disbarred. Sarver objects to the board’s finding that he violated either of two rules by failing to notify a client of his suspension—though he had stipulated to one of those violations. He also disputes the board’s finding that he presented no mitigating evidence and argues that an indefinite suspension is the appropriate sanction for his misconduct. {¶ 4} For the reasons that follow, we adopt the board’s findings of misconduct and its recommended sanction of permanent disbarment and we order Sarver to pay $50,000 in restitution. FACTS AND MISCONDUCT Sarver is retained for wrongful-death suit in June 2018 {¶ 5} Jessica Mustin was killed on June 23, 2018, when her vehicle collided with a vehicle traveling in the wrong direction on a highway in Cleveland. At the time of her death, Jessica had a four-year-old son and was in a relationship with 2  January Term, 2020 Anthony Hodge. Hodge referred Jessica’s mother, Juanita Mustin, to Sarver to pursue a wrongful-death claim. {¶ 6} On June 30, 2018, Juanita Mustin signed a contingent-fee agreement in which she agreed to pay Sarver 33 percent of any settlement obtained without filing a lawsuit. Sarver later agreed to help Mustin pursue a claim with the Ohio Victims of Crime Compensation Program (“OVCCP”). For the first five and a half months of Sarver’s representation, he communicated with Mustin only by telephone or through Hodge. Sarver negotiates a settlement with Allstate Insurance Company and files a document in the probate court {¶ 7} Sarver notified the other driver’s insurer, Allstate Insurance Company, that he was representing Jessica’s estate, and on August 21, 2018, Allstate offered to settle the estate’s claim for its policy limit of $50,000. Sarver informed Mustin of the offer and told her that all proceeds of the settlement, less his attorney fees and costs, would be held in trust for Jessica’s minor son. He advised Mustin that he would need to complete some paperwork for the probate court before any of the proceeds could be distributed. {¶ 8} On September 6, 2018, Sarver accepted Allstate’s settlement offer on Mustin’s behalf. He also prepared, and obtained Mustin’s signature on, various probate documents, including an application for authority to administer the estate and an application to approve the settlement and distribution of wrongful-death and survival claims. He took those documents to the Cuyahoga County Probate Court on October 15, 2018, but filed only the application for authority to administer the estate. {¶ 9} Throughout relator’s investigation and this disciplinary proceeding, Sarver has claimed that he did not file the other documents because a magistrate either told him or led him to believe that he could streamline the probate-court proceedings by disbursing some of the settlement proceeds to family members at 3  SUPREME COURT OF OHIO the direction of the fiduciary to reduce the distribution to Jessica’s son to less than $25,000. The magistrate did not recall having spoken with Sarver, and she submitted an affidavit in this disciplinary proceeding that contradicted Sarver’s claim. She averred that she had never advised any attorney or layperson to distribute the proceeds of a personal-injury or wrongful-death case either without the probate court’s approval or pursuant to the administrator’s directives or so as to attempt to reduce the funds due to a minor child to less than $25,000. Sarver testified that he did not believe that the magistrate’s affidavit was false or incorrect. Therefore, the board determined that Sarver’s statements about the magistrate’s advice were false and that the real reason he had elected not to file the other probate documents was that they could not be filed until Mustin was appointed as the fiduciary. Sarver is suspended from the practice of law but continues to represent Mustin and the estate {¶ 10} On November 26, 2018, Sarver posted a $10,000 bond on Mustin’s behalf. That same day, the court appointed Mustin as the fiduciary of Jessica’s estate and issued her letters of authority. On November 28, 2018, this court suspended Sarver from the practice of law for two years with 18 months conditionally stayed. {¶ 11} In December 2018, Sarver filed in this court an affidavit of compliance stating that he had complied with our suspension order and that he had notified his clients and the courts in which he had pending cases of his suspension. He has now stipulated that contrary to his affidavit of compliance, he had not notified Mustin, the probate court, Allstate, or the OVCCP of his suspension. {¶ 12} Despite his suspension, Sarver continued to represent Mustin. Just two days after he was suspended, he wrote a letter to the OVCCP on his law-office letterhead, which identified him as an attorney. He closed the letter, “We look forward to working with you on this claim.” That same day, he signed Mustin’s 4  January Term, 2020 name to a settlement release, falsely notarized that signature, and sent the document to Allstate. {¶ 13} On December 10, 2018, Sarver received the settlement check, signed Mustin’s name to it, and deposited it into his client trust account. After depositing the settlement check into his client trust account, Sarver began to distribute the settlement proceeds without the probate court’s approval. He immediately began paying personal financial obligations directly from his client trust account with what he had calculated to be his earned fee. {¶ 14} At his disciplinary hearing, Sarver testified that Mustin had verbally authorized him to sign the settlement release and check on her behalf. But the board found that he had attempted to duplicate Mustin’s signature and that that effort would have been unnecessary if he had permission to sign the document and check on her behalf. And Mustin’s testimony was clear: she never gave Sarver permission to sign her name on the document or the check. {¶ 15} In mid-December 2018, Sarver met Mustin for the first time at her home and, contrary to the application to approve the settlement and distribution of the wrongful-death proceeds that she had previously signed, gave her a check for $4,734. He suggested that they make a $2,500 distribution to Hodge, and he later issued a $2,000 check to Earth Temple, a 501(c)(3) corporation registered to Hodge, see 26 U.S.C. 501(c)(3). Although Sarver claimed that he and Mustin had mutually agreed to make those distributions, Mustin testified that she never asked Sarver for money because she knew that the settlement proceeds would go to her grandson. She said that Sarver told her that her check was “an early Christmas present” and that he was giving it to her for tax reasons. Mustin also testified that she went along with Sarver’s suggestion that because Hodge was dating Jessica at the time of her death, he should get a portion of the settlement proceeds. 5  SUPREME COURT OF OHIO Mustin becomes aware of Sarver’s suspension from the practice of law {¶ 16} On February 5, 2019, an OVCCP representative called Mustin to discuss her case and informed her that he could no longer work with Sarver because Sarver’s law license had been suspended. That was the first time that Mustin heard of Sarver’s suspension—more than two months after his suspension and more than one month after he avowed to this court that he had indeed informed Mustin of his suspension. When she called Sarver to ask about his suspension, he admitted that his license had been suspended but further stated that it would be reinstated in a couple of months. He did not advise her to consult with other counsel, nor did he return her file to her. Sarver stipulates to some violations of the Rules of Professional Conduct {¶ 17} The parties stipulated and the board found that Sarver’s conduct violated Prof.Cond.R. 1.16(d) (requiring a lawyer to promptly deliver client papers and property as part of the termination of representation), 5.5(a) (prohibiting a lawyer from practicing law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction), 8.1(a) (prohibiting a lawyer from knowingly making a false statement of material fact in connection with a disciplinary matter), 8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice). {¶ 18} Sarver also stipulated that he violated Prof.Cond.R. 3.4(c) (prohibiting a lawyer from knowingly disobeying an obligation under the rules of a tribunal) by failing to notify Mustin of his suspension and by paying himself attorney fees without first obtaining the probate court’s approval, in violation of Loc.R. 71.1 of the Cuyahoga County Probate Court. However, he contested an alleged violation of Prof.Cond.R. 1.4(a)(1) (requiring a lawyer to inform a client of any decision or circumstance with respect to which the client’s informed consent is required), arguing that the charge was duplicative of the stipulated Prof.Cond.R. 6  January Term, 2020 3.4(c) violation in that both allegations arose from his failure to inform Mustin of his November 2018 suspension. Sarver argued that Mustin’s informed consent was not necessary to terminate his representation following his suspension. The board found that Sarver had a duty to comply with this court’s suspension order under Prof.Cond.R. 3.4(c) and a separate duty to keep Mustin reasonably informed about the status of her case under Prof.Cond.R. 1.4(a). Specifically, the board determined that the decision on how to proceed in the face of Sarver’s suspension required Mustin’s informed consent and that that choice should have been between obtaining new counsel and delaying the insurance settlement and administration of the probate estate until Sarver’s license was reinstated. Consequently, the board found that Sarver violated both Prof.Cond.R. 3.4(c) and 1.4(a)(1). SARVER’S FIRST AND SECOND OBJECTIONS First objection: Violation of Prof.Cond.R. 1.4(a)(1) {¶ 19} In support of his first objection, Sarver asserts that his representation of Mustin terminated automatically upon his suspension. Therefore, he contends, he could not have violated Prof.Cond.R. 1.4(a)(1) by failing to notify Mustin of that suspension, because her informed consent was not necessary to terminate the representation and the decision regarding how to move forward was Mustin’s alone. {¶ 20} Sarver’s suspension was effective the moment our order was filed with the clerk. See S.Ct.Prac.R. 18.01. That order required him to “immediately cease and desist from the practice of law in any form,” divested him of “all of the rights, privileges, and prerogatives customarily accorded to a member in good standing of the legal profession of Ohio,” and effectively disqualified him from acting as an attorney in any respect. It did not automatically terminate his relationship with Mustin, however, as our order specifically required him to notify all his clients of his suspension. {¶ 21} Had Sarver timely notified Mustin of his suspension as required by Gov.Bar R. V(22) and our suspension order, the decision to proceed with new 7  SUPREME COURT OF OHIO counsel or wait for him to be reinstated would have been Mustin’s alone. Notwithstanding that order, Sarver failed to notify Mustin of his suspension and continued to represent her, signed her name to the settlement release and check, negotiated the check, and distributed a portion of the settlement proceeds without obtaining the required probate-court approval. Those actions placed Mustin in jeopardy of violating her fiduciary duties to the estate and therefore required her informed consent. We therefore overrule Sarver’s first objection to the board’s findings of misconduct and find that his failure to notify Mustin of his suspension and to obtain her informed consent to proceed with the representation violated Prof.Cond.R. 1.4(a)(1). Second objection: Violation of Prof.Cond.R. 3.4(c) {¶ 22} Sarver objects to the board’s finding that he violated Prof.Cond.R. 3.4(c), contending that the title of Prof.Cond.R. 3.4 (“Fairness to opposing party and counsel”), the content of the rule, and the official comments accompanying the rule show that the scope of the rule is limited to a lawyer’s conduct toward an opposing party or opposing counsel during the course of litigation. Because Sarver’s failure to comply with this court’s suspension order occurred after his first disciplinary action was complete, he contends, his failure to comply with this court’s suspension order cannot constitute a violation of Prof.Cond.R. 3.4(c). These arguments are without merit. {¶ 23} The plain language of Prof.Cond.R. 3.4(c) states that a lawyer shall not “knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on a good faith assertion that no valid obligation exists.” Prof.Cond.R. 3.4(c) contains no express temporal limitation on the prohibition against knowingly disobeying an obligation under the rules of a tribunal. Compare with Prof.Cond.R. 3.4(d) (providing that a lawyer shall not “in pretrial procedure intentionally or habitually make a frivolous motion or discovery request” [emphasis added]) and Prof.Cond.R. 3.4(e) (providing that a lawyer shall not “in trial, allude 8  January Term, 2020 to any matter that the lawyer does not reasonably believe is relevant” [emphasis added]). In addition, the preamble to the Rules of Professional Conduct provides that the comments accompanying a rule explain and illustrate the meaning and purpose of the rule and that they are “intended as guides to interpretation” but that “the text of each rule is authoritative.” Prof.Cond.R., Preamble [21]. {¶ 24} Moreover, we have held that the title of a chapter of the Rules of Professional Conduct does not limit the scope of the rules contained therein. See Disciplinary Counsel v. Robinson, 126 Ohio St. 3d 371 , 2010-Ohio-3829, 933 N.E.2d 1095 , ¶ 23-30 (rejecting attorney’s argument that the title “Advocate” limited the application of the third chapter of the Rules of Professional Conduct to conduct occurring in an attorney’s professional role as an advocate and holding that the rules in that chapter apply with equal force to attorneys acting in personal or professional capacity). We have routinely applied the prohibitions set forth in Prof.Cond.R. 3.4(a)—which, like Prof.Cond.R. 3.4(c), lacks an express temporal limitation—to attorneys’ personal conduct that has occurred in the absence of ongoing litigation. See, e.g., Cleveland Metro. Bar Assn. v. Azman, 147 Ohio St. 3d 379 , 2016-Ohio-3393, 66 N.E.3d 695 ; Columbus Bar Assn. v. Okuley, 154 Ohio St.3d 124, 2018-Ohio-3857, 111 N.E.3d 1173 . {¶ 25} On this authority, we conclude that the prohibition against a lawyer’s knowing disobedience of an obligation under the rules of a tribunal contained in Prof.Cond.R. 3.4(c) applies to a lawyer’s conduct that occurs after a tribunal has issued a final order as well as to a lawyer’s conduct that occurs before or during litigation. We therefore overrule Sarver’s second objection. ADOPTION OF THE BOARD’S FINDINGS OF MISCONDUCT {¶ 26} After independently reviewing the record and overruling Sarver’s first two objections, we adopt the board’s findings that Sarver’s conduct violated Prof.Cond.R. 1.4(a)(1), 1.16(d), 3.4(c), 5.5(a), 8.1(a), 8.4(c), and 8.4(d). 9  SUPREME COURT OF OHIO RECOMMENDED SANCTION {¶ 27} “The primary purpose of the disciplinary process is to protect the public from lawyers who are unworthy of the trust and confidence essential to the attorney-client relationship and to allow us to ascertain the lawyer’s fitness to practice law.” Disciplinary Counsel v. Sabroff, 123 Ohio St. 3d 182 , 2009-Ohio- 4205, 915 N.E.2d 307 , ¶ 20. In determining the appropriate sanction for attorney misconduct—a sanction designed to protect the public—we consider all relevant factors, including the ethical duties violated, the aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions imposed in similar cases. See Dayton Bar Assn. v. Sullivan, 158 Ohio St. 3d 423 , 2020-Ohio-124, 144 N.E.3d 401 , ¶ 28. {¶ 28} “We have recognized that the presumptive sanction for continuing to practice law while under suspension is disbarment.” Disciplinary Counsel v. Hoskins, 150 Ohio St. 3d 41 , 2017-Ohio-2924, 78 N.E.3d 845 , ¶ 27, citing Disciplinary Counsel v. Fletcher, 135 Ohio St. 3d 404 , 2013-Ohio-1510, 987 N.E.2d 678 , ¶ 10; Sabroff at ¶ 21; Disciplinary Counsel v. Frazier, 110 Ohio St. 3d 288 , 2006-Ohio-4481, 853 N.E.2d 295 , ¶ 54; and Disciplinary Counsel v. Allison, 98 Ohio St. 3d 322 , 2003-Ohio-776, 784 N.E.2d 695 , ¶ 12. This is especially true when there are no mitigating circumstances. See Cincinnati Bar Assn. v. Rothermel, 112 Ohio St. 3d 443 , 2007-Ohio-258, 860 N.E.2d 754 , ¶ 14. {¶ 29} The parties stipulated that four aggravating factors are present in this case: (1) Sarver’s prior discipline, see Gov.Bar R. V(13)(B)(1); (2) a dishonest or selfish motive, see Gov.Bar R. V(13)(B)(2); (3) multiple violations of the Rules of Professional Conduct, see Gov.Bar R. V(13)(B)(4); and (4) the harm he caused to Juanita Mustin, see Gov.Bar R. V(13)(B)(8). The board adopted these factors and observed that Sarver had engaged in a pattern of lies that spanned both of his disciplinary cases—including lying at various times throughout this disciplinary proceeding about the advice he had received from the magistrate—though it did not expressly attribute aggravating effect to that determination. See Gov.Bar R. 10  January Term, 2020 V(13)(B)(3) and (6). The board did, however, attribute aggravating effect to Sarver’s lack of candor and his failure to acknowledge his wrongdoing in this case. See Gov.Bar R. V(13)(B)(7). The parties did not stipulate to any mitigating factors, and the board found none. See Gov.Bar R. V(13)(C). {¶ 30} In their posthearing briefs, the parties suggested that the appropriate sanction for Sarver’s misconduct is an indefinite suspension, and relator proposed that conditions, including the payment of restitution to Jessica’s estate or to Allstate, be placed on Sarver’s reinstatement to the practice of law. The board considered two lines of precedent involving attorneys who continued to practice law and engaged in additional misconduct while under suspension—one line in which we imposed indefinite suspensions and one in which we permanently disbarred the attorneys—and it recommends that Sarver be permanently disbarred for his misconduct. This court is the ultimate arbiter of attorney discipline, and though we do not need to adopt the board’s sanction recommendations, see Cincinnati Bar Assn. v. Powers, 119 Ohio St. 3d 473 , 2008-Ohio-4785, 895 N.E.2d 172 , ¶ 21, we agree with the board that permanent disbarment is necessary in this case to adequately protect the public. SARVER’S THIRD AND FOURTH OBJECTIONS Third objection: Mitigating evidence {¶ 31} Sarver objects to the board’s finding that he presented no mitigating evidence. Specifically, he asserts that he attempted to make restitution of $43,266 (the full amount of the settlement, less the funds he had disbursed to Mustin and Hodge) to Jessica Mustin’s estate, but that the payment was rejected and returned to him by Juanita Mustin’s new counsel. In his response to Sarver’s objection, relator notes that Sarver waited until only a week before his disciplinary hearing and attempted to make only partial restitution of the $50,000 that the estate was entitled to receive. Moreover, we note that Mustin’s counsel rejected Sarver’s restitution offer because, once Allstate was informed that the settlement agreement 11  SUPREME COURT OF OHIO had never been approved by the probate court, Allstate agreed to reoffer its $50,000 liability limit in exchange for a full release. {¶ 32} We have repeatedly attributed little or no mitigating effect to restitution that was not timely made. See, e.g., Cleveland Metro. Bar Assn. v. Dixon, 95 Ohio St. 3d 490 , 2002-Ohio-2490, 769 N.E.2d 816 , ¶ 20-21 (affording little mitigating effect to restitution paid as part of negotiated settlement of litigation commenced against attorney more than one year after she became aware of grievance against her); Disciplinary Counsel v. Williams, 145 Ohio St. 3d 308 , 2016-Ohio-827, 49 N.E.3d 289 , ¶ 16 (attributing no mitigating effect to attorney’s attempt to make partial restitution just one day before his disciplinary hearing). Sarver’s belated and unsuccessful effort to make partial restitution to Jessica’s estate can only be described as a “Hail Mary” to attempt to lay the groundwork for at least one mitigating factor for his disciplinary case. Rather, because his restitution attempt was so insincere, we instead conclude that the aggravating factor of failure to make restitution, see Gov.Bar R. V(13)(B)(9), exists in this case— especially given that Jessica’s child has been deprived of the time-value of the money in the estate entirely due to Sarver’s misconduct. We therefore overrule Sarver’s objection and attribute no mitigating effect to his “effort” to make partial restitution to Jessica’s estate. Fourth objection: Appropriate sanction {¶ 33} In his final objection, Sarver contends that an indefinite suspension—not permanent disbarment—is the appropriate sanction for his misconduct. Relator, finding it to be a close call, stands by that recommendation. But relator also acknowledges that because Sarver’s misconduct occurred while he was suspended from the practice of law, permanent disbarment is not unwarranted. {¶ 34} Based on Sarver’s prior discipline, his dishonest and selfish motive, his multiple new violations of the Rules of Professional Conduct, the harm caused 12  January Term, 2020 to Mustin, and this court’s precedent, we hold that permanent disbarment is the appropriate sanction in this case. Sarver’s disciplinary history is egregious {¶ 35} The recency and severity of Sarver’s disciplinary history cannot be overlooked. In November 2018, this court suspended Sarver from the practice of law for two years, with 18 months stayed on conditions, for “engaging in a sexual relationship with a[n indigent] client in a criminal case—during which he also obstructed official business, committed trespass, and lied about the relationship to a judge,” Sarver I, 155 Ohio St. 3d 100 , 2018-Ohio-4717, 119 N.E.3d 405 , at ¶ 31. The facts of that case, as described in the majority opinion, were as follows: Sarver and J.B. met each other in 2012 when Sarver represented J.B.’s then boyfriend in a legal matter. On September 11, 2015, J.B. reached out to Sarver when she needed “a good attorney for felony ......some stupid shit happened and I really need to talk to u its not good.” The next day, Sarver and J.B. met at a Columbus restaurant, discussed J.B.’s criminal case over drinks, and then had sex in Sarver’s vehicle in the parking lot. J.B. was charged with theft in the Hocking County Municipal Court and a warrant was issued for her arrest. * * * [Sarver] subsequently instructed her to turn off the Global Positioning System (“GPS”) on her mobile phone so that law enforcement could not track her. Several days later, a grand jury indicted J.B. for multiple felonies, and due to Sarver’s advice to turn off the GPS on her mobile phone, she avoided arrest for almost one month before being apprehended. The judge presiding over J.B.’s arraignment appointed Sarver to represent her, and Sarver, now representing an indigent 13  SUPREME COURT OF OHIO client as court-appointed counsel, engaged in sexual activity with her at least seven more times over the next four months. They also trespassed onto Sarver’s neighbor’s property to use a hot tub. * * * [A]lthough rumors of his sexual relationship with J.B. soon spread, Sarver falsely denied the rumors to the judge presiding over J.B.’s criminal case on two separate occasions. * * * Detectives interviewed J.B. * * *, and during her interview * * *, she stated that Sarver had “insinuated” that he would help J.B. with her “warrants and cases for sexual favors.” She told the detectives that she had “problems saying no to something like that * * *. You feel kinda forced into it. * * * And, you know, of course, I had something over my head, I was facing 7 felonies.” * * * Sarver pleaded guilty to three misdemeanor counts of criminal trespassing (based on Sarver’s unauthorized use of his neighbor’s hot tub) and one misdemeanor count of obstructing official business (based on his advice to J.B. to turn off her phone’s GPS while there was an outstanding warrant for her arrest). * * * *** * * * The board * * * found that Sarver’s conduct violated Prof.Cond.R. 1.8(j) (prohibiting a lawyer from soliciting or engaging in sexual activity with a client unless a consensual sexual relationship between them existed prior to the client-lawyer relationship), 8.4(b) (prohibiting a lawyer from committing an illegal act that adversely reflects on the lawyer’s honesty or trustworthiness), 8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice). 14  January Term, 2020 (Ellipses in internal quotations sic.) Id. at ¶ 4-10. {¶ 36} In reviewing the board’s findings, this court emphasized the severity of Sarver’s misconduct, acknowledging that the “ ‘[m]ost disturbing’ ” cases are those “ ‘in which a lawyer has had sex with a client while defending the client against criminal charges * * * or has accepted sex in lieu of fees.’ ” (Ellipsis sic.) Id. at ¶ 17, quoting Disciplinary Counsel v. Krieger, 108 Ohio St. 3d 319 , 2006- Ohio-1062, 843 N.E.2d 765 , ¶ 29. And as the court noted, “[t]he abuse of the attorney-client relationship not only harms the dignity of the client, whose body and trust in her lawyer have been violated, but it also impugns the legal system as a whole.” Sarver I at ¶ 29. Thus, for his violations of the Rules of Professional Conduct, the court suspended Sarver from the practice of law for two years, with 18 months conditionally stayed. Id. at ¶ 32. {¶ 37} Sarver had engaged in a pattern of misconduct and committed some of the most egregious and disturbing violations of attorney misconduct, short of a violent felony offense—violating and abusing the attorney-client relationship and deceiving members of the judiciary. This court issued a sanction that would protect the public but would give Sarver the opportunity to be reinstated to the practice of law with the shortest suspension that could be imposed under the circumstances. However, despite this sanction, Sarver immediately proceeded to violate the Rules of Professional Conduct by lying to this court and his client. Sarver’s dishonest and selfish motivations led to more violations of the Rules of Professional Conduct {¶ 38} Despite this court’s efforts to prevent Sarver from committing future transgressions, Sarver continued his pattern of deceit, manipulation, and selfishness to harm yet another client. Within the first few days of his original suspension and continuing through the remainder of 2018 and well into 2019, Sarver violated seven professional-conduct rules in relation to his “representation” of Juanita Mustin and 15  SUPREME COURT OF OHIO of Jessica’s estate: Prof.Cond.R. 1.4(a)(1), 1.16(d), 3.4(c), 5.5(a), 8.1(a), 8.4(c), and 8.4(d). The violations spanned across four chapters of the Rules of Professional Conduct and occurred at various times throughout Sarver’s interactions with Mustin. This was not a single transaction or instance—this was a pattern of deceit and misrepresentation involving a grieving and vulnerable mother. {¶ 39} After being suspended on November 28, 2018, Sarver did not inform any of the relevant parties of his suspension. Sarver lied by omission in continuing to represent Mustin and the estate. He then expressly lied to this court by filing an affidavit of his compliance with our suspension order, fully knowing that he had not notified any relevant party of his suspension. {¶ 40} Then, building on his lies, Sarver forged his client’s name to the $50,000 settlement check issued by Allstate and began using what he believed to be his “earned fees” to pay personal financial obligations. Sarver then disbursed funds to individuals with absolutely no entitlement to those funds to reduce the amount of the estate so as to avoid certain proceedings in probate court. Sarver did this without the probate court’s authority to expend any of the settlement funds and while under suspension from this court. {¶ 41} Making matters worse, Sarver attempted to justify his actions to relator by falsely accusing a magistrate—another lawyer and member of the judiciary—of advising him to reduce the amount of the estate at the direction of the fiduciary to avoid certain probate proceedings. {¶ 42} Sarver then made a feeble attempt to remedy the situation seven days before his own disciplinary hearing by offering to make partial restitution in the amount of $43,266, the full amount of the settlement, less the funds he had disbursed to Mustin and Jessica’s boyfriend. {¶ 43} Sarver’s actions are indicative of a selfish attorney who decided to “wait out” his suspension, so that he could secure and use settlement funds during his suspension, and then resume his representation after his suspension was over, 16  January Term, 2020 clearly thinking that no one would be the wiser. His misconduct, which includes practicing law while under suspension, warrants permanent disbarment. The sanctions imposed in similar cases support permanent disbarment {¶ 44} Sarver argues that the facts here are distinguishable from the facts of the cases on which the board relied to support its recommendation that he be permanently disbarred, and he maintains that the appropriate sanction for his misconduct is an indefinite suspension. Sarver argues that his case is similar to Disciplinary Counsel v. Meyer, 142 Ohio St. 3d 448 , 2015-Ohio-493, 32 N.E.3d 434 , in which we imposed an indefinite suspension. Relator too believes that Sarver’s misconduct most closely resembles the conduct at issue in Meyer. Relator therefore also maintains that indefinite suspension is likely the appropriate sanction. {¶ 45} We have held that disbarment is the presumed sanction for an attorney who practices law while under suspension. Hoskins, 150 Ohio St. 3d 41 , 2017-Ohio-2924, 78 N.E.3d 845 , at ¶ 27. But, we have clarified that an indefinite suspension is more appropriate for attorneys who continued to practice law after we had suspended their licenses for continuing-legal-education and registration violations as well as for those who continued to practice law during suspensions for less egregious forms of misconduct than the misconduct exposed here, see Disciplinary Counsel v. Freeman, 126 Ohio St. 3d 389 , 2010-Ohio-3824, 934 N.E.2d 328 , ¶ 14. {¶ 46} Sarver’s prior two-year suspension, with 18 months conditionally stayed, is not as severe a sanction as the prior indefinite suspensions we had imposed in Cleveland Metro. Bar Assn. v. Pryatel, 145 Ohio St. 3d 398 , 2016-Ohio- 865, 49 N.E.3d 1286 ; Frazier, 110 Ohio St. 3d 288 , 2006-Ohio-4481, 853 N.E.2d 295 ; and Disciplinary Counsel v. Mbakpuo, 98 Ohio St. 3d 177 , 2002-Ohio-7087, 781 N.E.2d 208 —permanent-disbarment decisions on which the board relied. But Sarver’s prior suspension was the consequence of egregious violations of our Rules 17  SUPREME COURT OF OHIO of Professional Conduct stemming from misconduct that reflected a dishonest, selfish motive and a complete lack of respect for the criminal justice system. Therefore, although Sarver’s prior sanction is distinguishable from those we had imposed in Pryatel, Frazier, and Mbakpuo, the circumstances here do not support a deviation from the presumptive sanction of disbarment today. {¶ 47} Sarver also argues that his case is distinguishable from Disciplinary Counsel v. Bellew, 152 Ohio St. 3d 430 , 2017-Ohio-9203, 97 N.E.3d 438 , a case in which we imposed permanent disbarment. Sarver contends that because he “cooperated” with the disciplinary process, did not take on new clients while under suspension, and tried to make restitution, indefinite suspension is an appropriate sanction. {¶ 48} In Bellew, we permanently disbarred an attorney who had abandoned multiple clients, failed to refund those clients their retainers, failed to cooperate in the disciplinary process, failed to answer five formal disciplinary complaints filed against him, and continued to practice law while under suspension. We agreed with the board’s findings that Bellew had acted with a dishonest and selfish motive, had engaged in a pattern of misconduct that involved multiple offenses, and had taken advantage of vulnerable clients who needed legal assistance by taking their money and abandoning them. Id. at ¶ 13. In that case, there were no mitigating factors present. Id. We concluded that permanent disbarment was the only appropriate sanction. Id. at ¶ 15. {¶ 49} While it is true that Sarver did stipulate to most of the charged rule violations, he also lied to this court about his compliance with the first disciplinary process, lied to relator about the magistrate’s purported advice in handling the estate and about his lack of permission to sign a check on Mustin’s behalf, and then proceeded to object to the finding of a violation to which he had stipulated in the course of the disciplinary proceedings. That is not cooperation. 18  January Term, 2020 {¶ 50} Although Sarver had begun representing Mustin before his suspension, Sarver failed to notify her of his suspension and continued to represent her and the estate. And Sarver’s last-ditch effort at restitution was a self-serving “Hail Mary,” thrown apparently in the hopes of benefiting himself during this disciplinary process. Sarver too manipulated a vulnerable client. {¶ 51} So, while Sarver’s misconduct may not be as extensive as the misconduct at issue in Bellew, his misconduct is certainly serious enough to warrant permanent disbarment to adequately protect the public. {¶ 52} Sarver and relator encourage this court to consider this case in light of Meyer, 142 Ohio St. 3d 448 , 2015-Ohio-493, 32 N.E.3d 434 . We agree that this case and Meyer are somewhat similar but only to the extent that the attorneys has previously received similar sanctions and practiced law while under suspension. {¶ 53} Meyer was initially suspended for 61 days for violations of various profession-conduct rules in Kentucky, and we imposed a reciprocal-discipline order stating that she would not be reinstated to the practice of law in Ohio until she was reinstated in Kentucky. Approximately six months later, we found that she had continued to practice law in Ohio during her reciprocal suspension, made false and misleading statements to disciplinary counsel during her investigation, and failed to notify the Office of Attorney Services that she had changed her last name eight years earlier. For that misconduct, we suspended Meyer for an additional 18 months with 6 months conditionally stayed. We later imposed a separate interim suspension based on her failure to respond to a complaint alleging that she had violated our reciprocal-discipline order by failing to timely notify the courts and opposing counsel in two pending cases of her suspension and by participating in a case-management conference on behalf of a client while her license was under suspension. {¶ 54} Meyer later admitted all the material facts and that she committed five of the six alleged rule violations—including a violation of Prof.Cond.R. 3.4(c) 19  SUPREME COURT OF OHIO for her failure to abide by this court’s prior orders. We attributed aggravating effect to Meyer’s prior disciplinary offenses, her selfish or dishonest motive, and her initial default in the disciplinary process, and we indefinitely suspended her from the practice of law for her misconduct. Id. at ¶ 11. {¶ 55} We distinguish Meyer from the case at bar based on Sarver’s pattern of lying, especially to this court. Although both Meyer and Sarver made false and misleading statements to disciplinary counsel during a disciplinary investigation, Sarver distributed estate funds without obtaining required court approval and Sarver lied not only to relator but also to this court—in a sworn affidavit—and to his client and other parties. We do not take this conduct lightly, for a lawyer’s material misrepresentations to any court “strike[] at the very core of [the] lawyer’s relationship with the court” and “[r]espect for our profession is diminished with every deceitful act of a lawyer.” Disciplinary Counsel v. Fowerbaugh, 74 Ohio St.3d 187, 190, 658 N.E.2d 237 (1995). Sarver’s propensity to lie not only to his clients but to the judiciary sets this case far apart from Meyer. {¶ 56} Sarver’s misconduct is much more like the misconduct committed by the respondent in Disciplinary Counsel v. Shaw, 138 Ohio St. 3d 522 , 2014- Ohio-1025, 8 N.E.3d 928 , ¶ 13. The attorney in Shaw had been suspended from the practice of law for two years and had not sought reinstatement after that time, yet he continued to represent clients in two matters while under suspension, represented two new clients during the suspension, did not notify any of the clients of his suspension, paid himself attorney fees without the probate court’s approval, acted with a dishonest and selfish motive, and did not pay restitution. Shaw presented one mitigating factor, which was that he had cooperated with the relator’s investigation and the subsequent disciplinary proceedings, yet that was not enough to justify a departure from the presumption in favor of disbarment. Id. at ¶ 12-13. {¶ 57} We acknowledge that Sarver did not represent numerous clients while under suspension, but his misconduct is similar to Shaw’s. And we recognize 20  January Term, 2020 that in Shaw, there was a mitigating factor in the attorney’s favor; in Sarver’s case, there are none. As we have stated before, “[a]bsent any mitigating circumstances, the penalty for ignoring orders of the court and continuing to practice law while under suspension is disbarment.” Rothermel, 112 Ohio St. 3d 443 , 2007-Ohio-258, 860 N.E.2d 754 , at ¶ 14. Shaw supports permanent disbarment in this case. See also Toledo Bar Assn. v. Hickman, 119 Ohio St. 3d 102 , 2008-Ohio-3837, 892 N.E.2d 437 (permanently disbarring an attorney who practiced law while under suspension and committed similar misconduct of client neglect, improper retention of client funds, and lying to clients). Permanent disbarment is necessary to protect the public {¶ 58} “[W]e have consistently recognized that the primary purpose of disciplinary sanctions is not to punish the offender, but to protect the public.” Disciplinary Counsel v. Edwards, 134 Ohio St. 3d 271 , 2012-Ohio-5643, 981 N.E.2d 857 , ¶ 19, citing Disciplinary Counsel v. O’Neill, 103 Ohio St. 3d 204 , 2004- Ohio-4704, 815 N.E.2d 286 , ¶ 53. The aggravating circumstances and case law support a sanction of permanent disbarment in this case. That sanction is necessary to protect the public, because Sarver does not possess the requisite character and fitness to competently practice law in Ohio. {¶ 59} Integrity is a necessary characteristic for an attorney practicing law in Ohio, and Sarver does not possess this qualification. Sarver lied to his client in this case. And then he lied to this court by filing a false sworn affidavit. And then he lied to relator. This is a pattern of misconduct continued from Sarver I, in which he lied to the trial court multiple times and likely to numerous other individuals. We can only assume that Sarver’s “pants are charred” from the number of falsehoods that he has perpetuated throughout Sarver I and this case. {¶ 60} We must protect the public from lawyers like Sarver who manipulate their clients, individuals to whom the lawyer owes a fiduciary relationship as well as ethical duties. In the oath for admission to the Ohio bar, attorneys swear or 21  SUPREME COURT OF OHIO affirm that they will abide by the Ohio Rules of Professional Conduct, will conduct themselves with dignity and civility, and will show respect towards judges, court staff, clients, fellow professionals, and all other persons. Gov.Bar R. I(9). Sarver has disregarded his oath to the bar and his duties to his clients. Here, Sarver manipulated a grieving mother while “representing” her in the resolution of her daughter’s estate. He forged his client’s signature, then distributed some of the funds to himself and others, all without proper authority and while under suspension. And in Sarver I, Sarver essentially exchanged his legal services for sexual favors from his indigent client in a criminal case. Like in the case at bar, he manipulated a vulnerable client in that case, too. Sarver has a pattern of breaching his clients’ trust to pursue his own objectives—financial or otherwise—rather than act in the interest of his clients. {¶ 61} Any sanction less severe than permanent disbarment in this case would be inadequate to protect the public. Sarver committed the misconduct in this case immediately following our disciplinary decision and during his suspension in Sarver I. Permanent disbarment coupled with the requirement that Sarver make full restitution of $50,000 to Allstate or the estate of Jessica Mustin1 are necessary to adequately protect the public from future harm. CONCLUSION {¶ 62} Accordingly, Jason Allan Sarver is permanently disbarred from the practice of law and ordered to make restitution of $50,000 to Allstate Insurance Company or the estate of Jessica Mustin. Costs are taxed to Sarver. Judgment accordingly. O’CONNOR, C.J., and FRENCH, DEWINE, DONNELLY, and STEWART, JJ., concur. KENNEDY, J., concurs in judgment only. 1. The proper restitution payee will depend on whether the insurer has issued a second settlement check to the estate. 22  January Term, 2020 _________________ Joseph M. Caligiuri, Disciplinary Counsel, and Karen H. Osmond and Donald M. Scheetz, Assistant Disciplinary Counsel, for relator. Law Office of Philip A. King, L.L.C., and Philip A. King, for respondent. _________________ 23

2020-12-02 15:10:02.837987+00

http://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/unpublished/a4105-18.pdf

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4105-18T2 T.J., Plaintiff-Appellant/ Cross-Respondent, v. M.J., Defendant-Respondent/ Cross-Appellant. __________________________ Submitted September 30, 2020 – Decided December 2, 2020 Before Judges Fisher and Gilson. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-0468-18. Townsend Tomaio & Newmark, LLC, attorneys for appellant/cross-respondent (Gregory A. Pasler, on the briefs). The DeTommaso Law Group, LLC, attorneys for respondent/cross-appellant (Taryn R. Zimmerman and Katrina M. Xyloportas, on the briefs). PER CURIAM Plaintiff, the former husband, appeals from certain provisions of an Amended Dual Judgment of Divorce (AJOD). He challenges the alimony award, his obligation to pay the college expenses of the parties' daughter, and his responsibility for paying the parties' 2018 income taxes. Defendant, the former wife, cross-appeals, contending that the family court erred in calculating her child support obligation and in awarding plaintiff certain credits. 1 The AJOD was entered following a five-day trial and the court supported its rulings with written findings of fact and conclusions of law. Having reviewed the record, we affirm the AJOD in all respects except for the child-support award. We remand that one issue for recalculation. I. The parties were married in 1990, and twenty-seven years later in November 2017, plaintiff filed for divorce. The parties agreed that the November 27, 2017 filing date would be the date used for calculations regarding the end of their marriage. 1 We use initials in the caption to protect the privacy of the litigants and preserve the confidentiality of certain records because we discuss some of their financial circumstances. See R. 1:38-3(d). A-4105-18T2 2  Defendant and plaintiff have three children: a son born in January 1996; a son born in February 1998; and a daughter born in May 2001. The sons are both emancipated, and the daughter is currently nineteen years old and attending college.2 During their marriage, plaintiff was the primary wage earner and defendant took on the responsibilities of caring for the children and managing the non-financial aspects of the household. Plaintiff is fifty-nine years old and has held several senior positions at financial institutions. Currently, he is a Managing Director at Goldman Sachs. During the last five years of the marriage, plaintiff's total annual compensation averaged just over $1,17 0,000. His compensation at Goldman Sachs included a base salary of $400,000, a bonus, which in the last two years of the parties' marriage averaged over $450,000 per year, and restricted stock units. Defendant is fifty-five years old and is a certified public accountant who stopped practicing as an accountant in 1998. As already noted, she did not work outside the home for the last twenty years of the parties' marriage. At the time 2 At the time of the trial in 2019, the second son was in his senior year of college. We assume he graduated and is now emancipated. A-4105-18T2 3 of the trial in 2019, defendant was about to finish her master's degree in child advocacy and hoped to find employment working with children in crisis. The parties accumulated significant assets during their marriage, including three homes, financial investments, and retirement accounts. With the assistance of their counsel, the parties were able to resolve many of the issues concerning equitable distribution. The remaining issues were determined at trial. In 2019, following almost two years of litigation, the unresolved issues were tried before the family court. Each party testified and numerous exhibits were submitted into evidence. The parties stipulated to certain facts and submitted a report from a forensic accountant who had analyzed the compensation received by plaintiff in the last five years of the marriage. On May 15, 2019, after considering the testimony and evidence, the family court entered the AJOD and issued a written opinion setting forth its findings of fact and conclusions of law. The court found that defendant was entitled to "open durable alimony" based on the parties' twenty-seven-year marriage and that defendant had not worked outside of the home during the last twenty years of the marriage. In determining the amount of alimony, the court found that plaintiff's compensation averaged over $1 million per year; defendant A-4105-18T2 4 was hoping to work with children in crisis and, therefore, it was reasonable to impute $40,000 in income to her; defendant was credible concerning the parties' marital lifestyle and plaintiff was not credible; and to maintain her marital lifestyle, defendant would need $13,000 per month. Accordingly, the court awarded defendant $13,000 per month in alimony. The court also found that the parties had regularly saved money during their marriage. Consequently, the court awarded defendant $4000 per month for savings. Thus, the total monthly alimony was $17,000. As part of their stipulated facts, the parties agreed that there were no parenting time issues for their sons. They had also previously entered into a parenting time agreement, under which they shared parenting time with their daughter, and plaintiff was designated the parent of primary residential custody. Using the income amounts it had already determined and the child support guidelines, the court calculated that defendant should pay $36 per week in child support to plaintiff. Addressing college expenses for the daughter, the court noted that the parties had stipulated that plaintiff had set up 529 accounts for each child. At the time of the trial, the second son was in his last year of college and had over A-4105-18T2 5 $33,000 in his account and the daughter was in her last year of high school and had over $180,000 in her 529 account. The court then found that plaintiff had controlled the 529 accounts and had chosen to give thousands of dollars to the children instead of putting that money into the 529 accounts. Consequently, the court found that plaintiff should be responsible for the college expenses of the daughter that were not covered by her 529 account or grants and loans. The parties also asked the court to resolve the dispute over the payment of the 2018 taxes. The court found that during the marriage, plaintiff had always paid the annual tax obligation from his income. Therefore, the court ordered plaintiff to be responsible for the 2018 income tax obligation. Finally, relevant to this appeal, the court found that plaintiff was entitled to credits of just over $66,000 to account for the November 27, 2017 termination date of the marriage, several withdrawals from joint accounts taken by defendant, a tuition reimbursement, and a double payment by plaintiff of defendant's credit card. The family court's rulings were memorialized in the AJOD. Plaintiff appeals from certain provisions of the AJOD and defendant cross-appeals from other provisions. A-4105-18T2 6  II. Our review of a trial court's factual findings is limited. Elrom v. Elrom, 439 N.J. Super. 424 , 433 (App. Div. 2015) (citing Cesare v. Cesare, 154 N.J. 394 , 411 (1998)). "Generally, 'findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence.'" Ibid. (quoting Cesare, 154 N.J. at 411-12). "In matrimonial matters, this '[d]eference is especially appropriate when the evidence is largely testimonial and involves questions of credibility[.]'" Ibid. (alternation in original) (quoting Cesare, 154 N.J. at 412 ). Accordingly, we will not overturn an alimony award, child support award, or equitable distributions unless there was a clear abuse of discretion, a failure to correctly apply governing legal principles, or the factual findings were not supported by the record. See Genovese v. Genovese, 392 N.J. Super. 215 , 222-23 (App. Div. 2007) (citing Valentino v. Valentino, 309 N.J. Super. 334 , 339 (App. Div. 1998)) (recognizing that equitable distribution will be upheld unless the trial court "mistakenly exercised its broad authority to divide the parties' property"); see also Elrom, 439 N.J. Super. at 434 , 438 (reviewing a trial court's imputation of income and child support determination for an abuse of discretion); Robertson v. Robertson, 381 N.J. Super. 199 , 206 (App. Div. 2005) (reviewing a trial court's award of alimony for an abuse of discretion) . A-4105-18T2 7  III. On his appeal, plaintiff contends that the family court erred in (1) awarding defendant $17,000 per month in alimony; (2) requiring him to pay any unfunded portion of the daughter's college expenses; and (3) requiring him to be solely responsible for the 2018 income tax obligation. On her cross-appeal, defendant challenges (4) her child support obligation; and (5) two of the credits awarded to plaintiff. 1. Alimony Alimony is designed to allow a spouse who has been supported during the marriage to, as best as possible, maintain the marital standard of living. See Gnall v. Gnall, 222 N.J. 414 , 429 (2015). The type and amount of alimony is governed by factors defined by the Legislature in N.J.S.A. 2A:34-23(b). The Legislature has identified twelve factors that a court must consider, as well as "[a]ny other factors which the court may deem relevant." N.J.S.A. 2A:34-23(b). The Legislature has also required that the court make "specific findings on the evidence" regarding the statutory factors relevant to an alimony award. N.J.S.A. 2A:34-23(c). A-4105-18T2 8  Plaintiff contends that the family court failed to analyze the factors governing an award of alimony. In particular, he disputes his ability to pay the alimony from his base salary. We are not persuaded by his arguments. In its written opinion, the trial court did not conduct a factor-by-factor analysis of the statutory factors, but the court did discuss each of those factors in the opinion and it did make an award consistent with the statutory fact ors. The court expressly identified and quoted verbatim the statutory factors set forth in N.J.S.A. 2A:34-23(b). The court then discussed each of those factors, although it did not always cite to the statute during its analysis. The court discussed and analyzed the parties' actual need and ability to pay alimony. See N.J.S.A. 2A:34-23(b)(1). In that regard, the court made findings that plaintiff earned annual compensation of over $1 million, defendant had an ability to earn $40,000, and therefore plaintiff had an ability to pay alimony and defendant needed alimony to support the marital lifestyle. In making those findings, the court also assessed the parties' credibility. The court expressly found that plaintiff was not credible regarding the expenses of the marital lifestyle and defendant was credible. Consequently, the court accepted defendant's proofs that she needed $13,000 in alimony per month to maintain the marital lifestyle. A-4105-18T2 9  The court also discussed the twenty-seven-year duration of the marriage, the age and physical health of the parties, the earning capacity, education level and employability of the parties, and the length of defendant's absence from the job market. Accordingly, the court addressed the factors set forth in N.J.S.A. 2A:34-23(c)(2), (3), (5), and (6). The court also discussed that defendant was in the process of obtaining her master's degree in child advocacy and her ability to find employment. See N.J.S.A. 2A:34-23(b)(8). In addition, the court spent considerable time analyzing the standard of living established in the marriage and the likelihood that each party could maintain a comparable standard of living. N.J.S.A. 2A:34-23(b)(4). In conducting that analysis, the court referenced the parties' case information statements and the monthly expenses identified by each of the parties. As already noted, the court found that plaintiff was not credible concerning the marital monthly expenses and his assessment of defendant's ability to maintain the marital lifestyle on his proposed alimony amount of $4500 per month. By contrast, the court found defendant to be credible on the marital lifestyle and accepted that she had established a marital lifestyle standard of expenses of $13,000 per month. A-4105-18T2 10  In its opinion, the court also discussed the parental responsibilities for the children, the history of the financial and non-financial contributions to the marriage, the equitable distribution of the marital property, and the income available to both parties through investments. See N.J.S.A. 2A:34-23(b)(7), (9), (10), and (11). While the court did not expressly address the tax treatment and consequences of the alimony award, that issue is now governed by the Tax Cut and Jobs Act of 2017. Under that Act, alimony is not tax deductible to the payor spouse and not considered taxable income to the payee spouse. Pub. L. No. 115- 97, § 11051(b), 131 Stat. 2054, 2089-90 (2017). Plaintiff spends considerable time arguing that the family court did not appropriately consider his ability to pay alimony. In making those arguments, he focuses on his base salary of $400,000 per year. He contends that if you considered just his base salary and you assume that he pays forty percent in taxes, he has a monthly income of $20,000. That is, $400,000 less forty percent equals $240,000, divided by twelve equals $20,000. He argues that it is unfair that he should have to pay $17,000 of that to defendant. Plaintiff also contends that the trial court erred in directing him to pay his alimony through wage garnishment because, under his analysis, he is paying A-4105-18T2 11 eighty-five percent of his monthly net take-home pay to defendant. He argues the garnishment is a violation of 15 U.S.C. § 1673, which establishes the maximum allowable garnishment level as sixty-five percent of an obligor's disposable earnings. The flaw in plaintiff's argument is that he completely ignores his annual bonus. 15 U.S.C. § 1672(a) defines "earnings" to include bonuses. The undisputed evidence at trial established that in 2018, 2017, and 2016 plaintiff's annual bonuses were $505,000, $418,950, and $486,674 respectively. As already noted, plaintiff receives other forms of compensation and there was substantial credible evidence supporting the court's finding that plaintiff's annual income exceeded $1 million. The substantial credible evidence amply supports that plaintiff had the ability to pay alimony in the amount of $17,000 and the garnishment did not violate 15 U.S.C. § 1673. Plaintiff also spends considerable time arguing about what defendant could earn from the investment of the equitable distributions she received. In making his arguments concerning what defendant might earn, plaintiff ignores the substantial investment income he would be able to earn. The family court was clearly aware of the assets that the parties had accumulated during their A-4105-18T2 12 marriage. Accordingly, we discern no error or abuse of discretion in the family court's rulings on alimony. Plaintiff also challenges the $4000 portion of the alimony award for savings. He contends that during the marriage the parties used his base income of $400,000 for their living expenses and their savings and investments were paid out of his annual bonus. "A spouse's need for savings has long been recognized as a component of alimony[.]" Lombardi v. Lombardi, 447 N.J. Super. 26 , 38 (App. Div. 2016) (citing Martindell v. Martindell, 21 N.J. 341 , 354 (1956)). Accordingly, an alimony award can appropriately include a reasonable component of savings to protect the supported spouse "against the day when alimony payments may cease because of [the death of the supporting spouse] or change in circumstances [.]" Davis v. Davis, 184 N.J. Super. 430 , 437 (App. Div. 1982) (quoting Khalaf v. Khalaf, 58 N.J. 63 , 70 (1971)). The family court found that the parties had saved tens of thousands of dollars each year during the last five years of their marriage. Accordingly, an award of $4000 per month in savings to defendant was supported both by the law and the substantial credible evidence presented at trial. A-4105-18T2 13  2. College Contribution "The Legislature and our courts have long recognized a child's need for higher education and that this need is a proper consideration in determining a parent's child support obligation." Gac v. Gac, 186 N.J. 535 , 542 (2006). In Newburgh v. Arrigo, the Court set forth a non-exhaustive list of twelve factors courts should consider when evaluating a claim for college contribution. 88 N.J. 529 , 545 (1982). The Legislature codified those factors in N.J.S.A. 2A:34-23(a). In establishing college contribution, a court should not base its decision on a single factor. Instead, the court should consider all the enumerated factors. Gottlieb v. Gottlieb, 399 N.J. Super. 295 , 309 (App. Div. 2008). Plaintiff argues that the court failed to consider all the Newburgh factors and it was reversible error to require him to pay the daughter's college expenses. We disagree. Both parents agreed that the daughter would be going to college. In its opinion, the family court discussed the amount of money in the daughter's 529 account, the standard of living and economic circumstances of the parents, the sources of income and assets of each parent, the earning ability of each parent, that the child would be going to college, and the age of the child and the parents. A-4105-18T2 14 Accordingly, the court was aware of and considered the Newburgh factors and the statutory factors set forth in N.J.S.A. 2A:34-23(a). At the time of trial, the oldest son had already graduated from college, the second son was in his last year of college, and the daughter was about to enter college. The parties stipulated that the second son and daughter had 529 accounts, with $33,000 in the son's account and just over $180,000 in the daughter's account. The parties have informed us that the daughter is now attending college at the Kelley School of Business at the University of Indiana. They did not tell us what her tuition and college costs are. What is clearly established in the record is that plaintiff controlled the 529 accounts and that he has the ability to pay for any part of the daughter's education that is not covered by her 529 accounts or loans that the daughter may take out. In other words, this issue needs to be evaluated in context. 3. The 2018 Tax Obligation At trial, plaintiff contended that the parties should file their 2018 federal and state taxes jointly and defendant should be responsible for forty-five percent of the parties' income tax obligations. After hearing both parties' testimony, the family court ruled that plaintiff would be solely responsible for the 2018 income A-4105-18T2 15 tax obligation. The court found that during the marriage, plaintiff had p aid the annual tax obligations out of his income. After the court made its decision the parties, on their own, agreed that they would file a joint tax return for 2018 and that plaintiff would pay the 2018 tax liability. The parties dispute whether that subsequent agreement settled the tax issue. Plaintiff indisputably gained a significant tax saving by filing a joint return with defendant in 2018. There is also substantial credible evidence supporting the court's finding that during the marriage plaintiff used his income to satisfy the parties' tax obligations. Accordingly, we discern no basis to disturb either the family court's ruling on this issue or the parties' subsequent agreement on how they would handle the 2018 tax obligation. Moreover, the arguments made by the parties concerning this issue lack sufficient merit to warrant further discussion in a written opinion. See R. 2:11-3(e)(1)(E). 4. Child Support Both parties agree that the family court made an error in calculating child support. Under the Tax Cut and Jobs Act of 2017, which became effective January 1, 2019, alimony is not tax-deductible to the payor and is not taxable income to the payee. Pub. L. No. 115-97, § 11051(b), 131 Stat. 2054, 2089-90 A-4105-18T2 16 (2017). Accordingly, under the child support guidelines, alimony that is non- taxable and non-deductible should be entered on lines 4A and 4B of the child support guidelines. See Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX to R. 5:6A, www.gannlaw.com (2020). The family court entered the alimony paid on line 1B and the alimony received on line 1C. We therefore remand for the limited purpose of recalculating the child support by entering the alimony on the appropriate line of the guidelines. Because we have affirmed the family court's rulings on the income used and the alimony awarded, on remand neither party should be permitted to reargue issues that have already been decided. We also add a comment. The family court calculated defendant's child support obligation to be $36 per week. Given the income levels of the parties, the equitable distribution and the alimony involved, the child support obligation is a relatively small amount of money. Moreover, the daughter is now at college and child support needed to be recalculated. The parties and their counsel should have been able to work this issue out and their failure to do so does not demonstrate good faith and raises questions about their abilities to objectively evaluate issues. A-4105-18T2 17  5. The Credits Defendant challenges two credits awarded by the family court to plaintiff: (1) a $15,000 credit for pre-judgment withdrawals that she took from the parties' joint bank account; and (2) a $4584 credit for a double payment by plaintiff of her credit card.3 Defendant argues that those credits are inconsistent with the family court's finding that plaintiff was not entitled to credits for pendente lite expenses incurred by defendant and not supported by substantial credible evidence. We disagree. These arguments lack sufficient merit to warrant a discussion in a written opinion. See R. 2:11-3(e)(1)(E). We add the comment that the parties engaged in extensive litigation and a five-day trial where they both had the opportunity to testify and submit numerous exhibits. The record demonstrates that the family court was presented with these issues and accorded 3 The family court awarded other credits to plaintiff, but defendant has made no arguments about those other credits in her brief on appeal. Accordingly, we deem those issues waived and decline to address them. See Woodlands Cmty. Ass'n v. Mitchell, 450 N.J. Super. 310 , 318-19 (App. Div. 2017) ("An issue not briefed on appeal is deemed waived.") (quoting Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011)); Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2020) (same). A-4105-18T2 18 them their due consideration. We discern no error in the family court's evaluation of these two credits. 4 6. Conclusion In summary, we affirm the AJOD in all respects, except the child support award. We remand that one issue for a recalculation of child support using the income and alimony found by the family court. Affirmed in part, reversed and remanded in part. We do not retain jurisdiction. 4 In her reply brief, defendant makes arguments about her due process rights and her right to confront plaintiff on the credit card issue. Evaluated in context, these arguments lack merit because defendant was accorded all the process that she was due. A-4105-18T2 19

2020-12-02 15:10:04.294846+00

http://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/unpublished/a5118-18.pdf

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5118-18T1 STATE OF NEW JERSEY, Plaintiff-Respondent, v. PHILIP D. ZACCHE, Defendant-Appellant. _______________________ Argued October 28, 2020 – Decided December 2, 2020 Before Judges Vernoia and Enright. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0594-19. Samuel J. Halpern argued the cause for appellant. Lauren Bonfiglio, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Lauren Bonfiglio, of counsel and on the brief). PER CURIAM  Defendant Philip D. Zacche appeals from the June 27, 2019 Law Division order compelling the forfeiture of his retirement pension in accordance with N.J.S.A. 43:1-3.1. We affirm, substantially for the reasons set forth in Judge Mary C. Jacobson's cogent oral opinion. Defendant was a Jersey City police officer from December 1979 until he retired in June 2017. He held the position of Chief of Police from October 2014 to June 2017. Accordingly, he qualified to participate in the New Jersey Police and Fireman's Retirement System (PFRS) and received a monthly retirement benefit of $11,915, as well as partially subsidized health insurance following his retirement. From 2010 to 2014, defendant worked off duty and provided security for the Jersey City Housing Authority (JCHA). In the federal information detailing the allegations against defendant, the United States Attorney for the District of New Jersey asserted that defendant submitted timesheets to the JCHA for shifts he never worked, and accepted $31,713 in payments for work he did not perform. On January 5, 2018, defendant pled guilty to a violation of 18 U.S.C. § 666(a)(1)(A). He was ordered to pay $52,856 in reimbursement, fines, and forfeiture, and sentenced to a two-year probationary term. A-5118-18T1 2  On March 26, 2019, the State filed a verified complaint and order to show cause seeking, among other relief, defendant's permanent disqualification from any public position. The complaint alleged defendant's federal conviction was for a crime substantially similar to the crimes enumerated under N.J.S.A. 43:1 - 3.1(b), which required the complete forfeiture of all benefits he earned as a PFRS member. Defendant objected to the requested forfeiture of his pension and retirement benefits, but did not contest the State's request for his permanent disqualification from holding a public position. Judge Jacobson granted the State's application to proceed summarily and heard oral argument. During the argument, defendant contended forfeiture of his pension and retirement benefits violated his substantive and procedural due process rights, as well as his right to equal protection of the law. Judge Jacobson disagreed. Even though the judge acknowledged defendant suffered significant penalties due to his criminal conduct, she ordered that defendant: (1) forfeit any public employment, office, or position held by him, including his position as a Jersey City police officer; (2) be forever disqualified from holding any office or position of honor, trust, or profit under this State; and (3) forfeit all pension or retirement benefits earned as a member of a State-administered pension fund or retirement system. A-5118-18T1 3  On appeal, defendant presents the following arguments for our consideration: POINT I N.J.S.A. 43:3.1 IS UNCONSTITUTIONAL AS A DENIAL OF SUBSTANTIVE DUE PROCESS OF LAW BECAUSE IT SETS AN ARBITRARY, UNREASONABLE AND UNWORKABLE THRESHOLD FOR THE IMPOSITION OF TOTAL FORFEITURE OF ALL PENSION BENEFITS IRRESPECTIVE OF THE CRIMINAL SANCTIONS IMPOSED AS WELL AS THE AMOUNT OF THE MEMBER'S SERVICE. POINT II N.J.S.A. 43:1-3.1 IS UNCONSTITUTIONAL AS A VIOLATION OF [DEFENDANT'S] RIGHT TO PROCEDURAL DUE PROCESS OF LAW. POINT III N.J.S.A. 43:1-3.1 IS UNCONSTITUTIONAL BECAUSE IT DEPRIVES [DEFENDANT] OF HIS RIGHT TO EQUAL PROTECTION OF THE LAW. We review questions of law de novo. State v. Steele, 420 N.J. Super. 129 , 133 (App. Div. 2011) (citing In re Liquidation of Integrity Ins. Co., 193 N.J. 86 , 94 (2007)). We accord no special deference to a trial court's interpretation of the law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366 , 378 (1995) (citations omitted). A-5118-18T1 4  Legislative intent is the primary concern in interpreting a statute, and "the best indicator of that intent is the statutory language." Steele, 420 N.J. Super. at 133 (quoting DiProspero v. Penn, 183 N.J. 477 , 492 (2005)). Courts do not "engage in conjecture or surmise which will circumvent the plain meaning" of a statute. Ibid. N.J.S.A. 43:1-3.1(a) provides, in part: A person who holds [a] or has held any public office, position, or employment, elective or appointive, under the government of this State . . . who is convicted of any crime set forth in subsection b. of this section, or of a substantially similar offense under the laws of another state or the United States which would have been such a crime under the laws of this State, which crime or offense involves or touches such office, position or employment, shall forfeit all of the pension or retirement benefit earned as a member of any State or locally-administered pension fund or retirement system in which he participated at the time of the commission of the offense and which covered the office, position or employment involved in the offense. As used in this section, a crime or offense that "involves or touches such office, position or employment" means that the crime or offense was related directly to the person’s performance in . . . the specific public office or employment held by the person. [N.J.S.A. 43:1-3.1(a).] Like all statutes, N.J.S.A. 43:1-3.1 is presumed constitutional. Whirlpool Props., Inc. v. Dir., Div. of Taxation, 208 N.J. 141 , 175 (2011). A legislative A-5118-18T1 5 act will only be declared void if "its repugnancy to the Constitution is clear beyond a reasonable doubt." Harvey v. Bd. of Chosen Freeholders, 30 N.J. 381 , 388, (1959) (citing Gangemi v. Berry, 25 N.J. 1 , 10 (1957)). The "heavy burden" of establishing invalidity rests with the party challenging the statute. State v. Trump Hotels & Casino Resorts, 160 N.J. 505 , 526 (1999). Here, defendant has not met his heavy burden. Both the United States Constitution and the New Jersey Constitution guarantee due process to individuals. See U.S. Const. amend. XIV, § 1 (the due process clause bars a state from depriving "any person of life, liberty, or property, without due process of law"); N.J. Const. art. I, ¶ 1 ("all persons . . . have certain natural and unalienable rights . . . [such as] enjoying and defending life and liberty, of acquiring, possessing, and protecting property"). "Insofar as most rights are concerned, a state statute does not violate substantive due process if the statute reasonably relates to a legitimate legislative purpose and is not arbitrary or discriminatory." Greenberg v. Kimmelman, 99 N.J. 552 , 563 (1985). A statute survives a substantive due process attack if it is "supported by a conceivable rational basis." Ibid. (citations omitted). Here, the Legislature intended to compel a total forfeiture of a person's pension when that individual commits a crime specifically listed under N.J.S.A. A-5118-18T1 6 43:1-3.1(b). It is undisputed defendant committed such a crime, i.e., "theft by deception, [where] the amount involved exceeds $10,000." N.J.S.A. 43:1- 3.1(b)(2). Forfeiture of a pension has long been a legitimate and appropriate consequence for dishonorable conduct. See Corvelli v. Bd. of Trs., 130 N.J. 539 , 550 (1992); Eyers v. State, Bd. of Trs., 91 N.J. 51 , 56 (1982). Based on defendant's admitted dishonorable conduct, and the straightforward language of N.J.S.A. 43:1-3.1(a), Judge Jacobson had no discretion to deviate from the statute by limiting or declining to enforce its provisions, including its provisions for forfeiture. See Steele, 420 N.J. Super. at 134 . That is so because "[t]he statute plainly and unambiguously requires forfeiture of 'all of the pension or retirement benefit earned.'" Id. at 134-35. Although complete forfeiture is a significantly punitive consequence in response to defendant's criminal conviction, it does not constitute a substantive due process violation, nor is it arbitrary. As Judge Jacobson noted when citing to Cedeno v. Montclair State Univ., 163 N.J. 473 , 478 (2000) (citation omitted), it is "a harsh response to a problem serious enough to justify its harshness." The judge recognized defendant's forfeiture of his pension benefits was a consequence contemplated by the Legislature, since he used his status as a A-5118-18T1 7 police officer for approximately four years to obtain security work from the JCHA and engineered receipt of over $30,000 in unearned payments. N.J.S.A. 43:1-3.1's forfeiture requirement was intended to deter this type of criminal conduct. Therefore, the statute is legitimately tied to a rational basis and is constitutional. As applied to defendant, it does not violate his substantive due process rights. In Point II, defendant argues that his procedural due process rights were violated, as he was not afforded a full evidentiary hearing. Again, we are not persuaded. "In examining a procedural due process claim, we first assess whether a liberty or property interest has been interfered with by the State, and second, whether the procedures attendant upon that deprivation are constitutionally sufficient." Doe v. Poritz, 142 N.J. 1 , 99 (1995) (citing Valmonte v. Bane, 18 F.3d 992 , 998 (2d Cir. 1994)). In that regard, we do not question that public employees have a protected property interest in their pension benefits. See Gauer v. Essex Cty. Div. of Welfare, 108 N.J. 140 , 150 (1987). However, we also are satisfied the procedures associated with a pension forfeiture under N.J.S.A. 43:1-3.1 are constitutionally adequate. A-5118-18T1 8  N.J.S.A. 43:1-3.1 delegates the function of determining forfeiture solely to the judiciary. Whether the crime for which an individual is convicted falls within those for which a forfeiture shall be required under N.J.S.A. 43:1 -3.1(a) presents a legal issue for the court. In addition, the court must also determine as a matter of fact and law whether the crime "involves or touches" the individual's "office, position or employment." N.J.S.A. 43:1-3.1(a). Here, we easily conclude defendant's offense fits within this statute. Moreover, the pertinent facts supporting our conclusion were established when defendant pled guilty. Subsequently, he was properly noticed and afforded an opportunity to be heard before Judge Jacobson on the issue of his pension forfeiture. As defendant pled guilty to one of the enumerated offenses under the statute, and he does not dispute that his offense touched upon his employment as a Jersey City police officer, defendant's due process rights were satisfied without an evidentiary hearing. In Point III, defendant contends there is no rational basis for either the $10,000 threshold set forth in N.J.S.A. 43:1-3.1 or the complete forfeiture of his pension benefits required by the statute. Again, we are not convinced. The Fourteenth Amendment of the United States Constitution provides that a state may not "deny to any person within its jurisdiction the equal A-5118-18T1 9 protection of the laws." U.S. Const. amend. XIV, § 1. A "[f]ederal equal- protection analysis employs different tiers of review: strict scrutiny when an act involves a fundamental right or a suspect class; intermediate scrutiny when an act involves a semi-suspect class; and minimal rational-basis scrutiny in all other cases." Drew Assocs. of N.J., L.P. v. Travisano, 122 N.J. 249 , 258 (1991) (citing Brown v. City of Newark, 113 N.J. 565 , 573 (1989)). Equal protection requires that classifications not be arbitrary. Portiz, 142 N.J. at 91 (citing State v. Mortimer, 135 N.J. 517 , 536 (1994)). "[W]here individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement, . . . courts have been very reluctant . . . to closely scrutinize legislative choices . . . . In such cases, the Equal Protection Clause requires only a rational means to serve a legitimate end." Id. at 91-92 (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 , 441-42 (1985)). Employees who commit certain enumerated crimes warranting forfeiture of their pension benefits are not within a suspect classification, so the statute is reviewed for a legitimate rational basis. Such a rational basis is evident here. Indeed, the legislative intent of the challenged statute is "to preclude those who have once violated the public trust from [having] a second opportunity." A-5118-18T1 10 McCann v. Clerk, City of Jersey City, 338 N.J. Super. 509 , 517 (App. Div. 2001) (quoting Cedeno, 163 N.J. at 477 ) (citations omitted). The Legislature created the statute to protect the public and advance this objective, rather than protect the offender. Ibid. (citing Pastore v. Cty. of Essex, 237 N.J. Super. 371 , 377-78 (App. Div. 1989)). Additionally, the $10,000 threshold set forth in the statute is rational. As Judge Jacobson correctly observed, "the [L]egislature gets to draw lines. That's part of what their responsibility is." Here, the Legislature decided that a breach of the public trust involving misappropriation of funds in excess of $10,000 is where the line should be drawn, and where the severe penalty of a total pension forfeiture should be imposed. This statute rationally links the goals of crime deterrence to the protection of public funds. Therefore, neither the statute nor the $10,000 threshold violates defendant's right to equal protection. We hasten to add that prior to the enactment of N.J.S.A. 43:1-3.1, the New Jersey Supreme Court established a balancing test and relevant factors for courts to apply when presented with a pension forfeiture claim. Uricoli v. Bd. of Trs., 91 N.J. 62 , 77-78 (1982). The Uricoli factors, which were later codified in N.J.S.A. 43:1-3(c), apply "only to those claims for benefits where the specific pension statute is silent respecting the effect of a conviction for a crime relating A-5118-18T1 11 to the applicant's public office." Borrello v. Bd. of Trs., Pub. Emps. Ret. Sys., 313 N.J. Super. 75 , 77 (App. Div. 1998). Because defendant pled guilty to a crime covered under N.J.S.A. 43:1-3.1, the Uricoli factors did not apply. To the extent we have not addressed any remaining arguments, we are satisfied they lack sufficient merit to warrant discussion in this opinion. R. 2:11- 3(e)(1)(E). Affirmed. A-5118-18T1 12

2020-12-02 15:10:06.526328+00

http://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/unpublished/a5819-17.pdf

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5819-17T1 STATE OF NEW JERSEY, Plaintiff-Respondent, v. MALIK L. CANTY, a/k/a CANTY FUQUAN, Defendant-Appellant. ________________________ Submitted November 10, 2020 – Decided December 2, 2020 Before Judges Haas and Natali. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 16-02-0089. Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the briefs). Lyndsay V. Ruotolo, Acting Union County Prosecutor, attorney for respondent (Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM  Following a jury trial, defendant was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third- degree intent to distribute a CDS, N.J.S.A. 2C:35-5(a)(1), (b)(3); and second- degree intent to distribute a CDS within 500 feet of a public park, N.J.S.A. 2C:35-7.1. After merger, the court sentenced defendant to an eight-year prison term with a thirty-two-month period of parole ineligibility and assessed fines and penalties. Defendant raises the following issues on appeal: I. THE COURT UNDERMINED MR. CANTY'S DEFENSE BY FAILING TO INSTRUCT THE JURY, CONSISTENT WITH THE MODEL CHARGES, THAT THE IDENTITY OF THE PERSON WHO COMMITTED THE CRIME IS AN ELEMENT OF THE OFFENSE WHICH THE STATE HAS THE BURDEN OF PROVING BEYOND A REASONABLE DOUBT, AND THE IMPACT DISTANCE HAS ON THE ACCURACY AND RELIABILITY OF AN IDENTIFICATION. U.S. Const., Amends. V, XIV; N.J. Const., Art. I, Pars. 1, 9, 10. (Not Raised Below). II. A REMAND IS NECESSARY TO CORRECT THE JUDGMENT OF CONVICTION SO THAT IT ACCURATELY REFLECTS THE COURT'S ORAL PRONOUNCEMENT THAT COUNTS ONE AND THREE MERGE INTO COUNT FIVE. III. MR. CANTY'S SENTENCE IS EXCESSIVE, UNDULY PUNITIVE, AND MUST BE REDUCED. A-5819-17T1 2  After carefully reviewing the record and the applicable legal principles, we affirm defendant's convictions and sentence but remand for the court to correct the Judgment of Conviction (JOC) to accurately reflect the merger of the possession and distribution convictions into defendant's conviction for distribution within 500 feet of a public park and to correct any assessed fines and penalties. I. In August 2015, the Plainfield Police Division (Division) received a tip that two individuals were distributing heroin in Plainfield. This source also provided a phone number that the individuals purportedly used to conduct these narcotic transactions. Detective Michael Metz began text messaging the number provided and arranged to purchase ten folds of heroin. In preparation for the purchase, the Division equipped Detective Metz with a "wireless audio transmitter" so other detectives could monitor the transaction. The Division also provided Detective Metz with $80 of marked currency which would be used to purchase the heroin. Detective Metz was directed to an initial location but when he arrived, he was instructed by text message to go to a second location at Cedar Brook Park. Once there, Detective Metz received a phone call from a different number. The A-5819-17T1 3 caller, who was later identified as Melissa McPartland (McPartland), instructed Detective Metz to go to yet a third location in Plainfield on Laramie Road. After arriving, Detective Metz pulled over and McPartland entered the front passenger side of his undercover vehicle. Once in the vehicle, McPartland proceeded to pull several glassine folds of heroin out from her bra. McPartland then placed the heroin back in her bra and told Detective Metz that it was "trash" and she was "going to wait for Ace to bring [them] some better stuff." McPartland stated her boyfriend Arvin Rivas (Rivas) was going to assist in the transaction and that Ace drove a red Pontiac. Detective Metz then noticed Rivas approach the vehicle's front passenger side and speak with McPartland. He handed Rivas $70 in marked currency which was understood to be for the heroin. Rivas stepped away and used his cellphone to send text messages and make calls. Detective Metz stated that he could not hear Rivas's conversation but that he "seemed aggravated" during this exchange. When Rivas was finished with the conversation, he entered the vehicle's rear seat and told Detective Metz that they had "to go to see Ace because [he] [wa]sn't going to come to [them]." Rivas then instructed Detective Metz to drive to Arlington Avenue. Upon arriving, Rivas told McPartland that he "needed A-5819-17T1 4 something to put [the heroin] in." McPartland then handed Rivas the plastic wrapping from a cigarette container. Rivas exited the vehicle and crossed Arlington Avenue out of Detective Metz's view. Sergeant Troy Alston, who was involved in the investigation, testified he was able to hear Detective Metz's conversations through the wireless transmitter. He described his observations after he arrived on Arlington Avenue: Once Mr. Rivas got out of the vehicle and I got my position . . . , he walked up to the gentleman in the gray suit, who was standing in front of his residence. [State]: When you say the gentleman in the gray suit, is that someone in this courtroom? [Sergeant Alston]: Yes. Mr. Canty. [Attorney for defendant]: Stipulate, Judge. The Court: Thank you. Sergeant Alston testified that he observed Detective Metz's and Rivas's interactions from "[a] couple houses" away or approximately "150 . . . , 200 feet." He stated there was nothing obstructing his view, that it had rained earlier in the day but was no longer raining, and it was daylight out. At a suppression hearing, Sergeant Alston testified that he was familiar with defendant from previous narcotics investigations but did not so state at trial. A-5819-17T1 5  Sergeant Alston testified that defendant was already standing on the Arlington Avenue sidewalk when Rivas walked up to him. He then saw Rivas hand defendant "currency or . . . paper," which defendant "fiddled" with before putting it in his pocket and walking with Rivas to the rear of the Arlington Avenue home out of Sergeant Alston's view. After a minute or two, Sergeant Alston saw Rivas reappear and "adjust[] his waistband." Rivas then re-entered the vehicle and instructed Detective Metz to drive back to Laramie Road. During the drive back, Detective Metz asked Rivas whether they were "good," meaning whether "he ha[d] the drugs," and Rivas responded "yes." Detective Metz then handed Rivas $10 in marked currency as "a tip." As Detective Metz's vehicle approached Laramie Road, nearby officers pulled the vehicle over and arrested Rivas and McPartland. The officers recovered twenty-seven folds of heroin and one film of suboxone 1 from Rivas. After Detective Metz, McPartland, and Rivas left Arlington Avenue, Sergeant Alston stated he saw defendant exit the Arlington Avenue home and enter a Pontiac. Nearby takedown units arrested defendant and recovered three 1 Suboxone is a CDS, N.J.S.A. 2C:35–10(a)(1) and used to treat opioid dependence. A-5819-17T1 6 of the marked $20 bills and a cellphone, which contained text messages to Rivas's phone about the drug deal. The State charged defendant with third-degree possession of heroin and suboxone, N.J.S.A. 2C:35-10(a)(1) (counts one and two); third-degree intent to distribute heroin and suboxone, N.J.S.A. 2C:35-5(a)(1), (b)(3) (counts three and four); and second-degree intent to distribute heroin and suboxone within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (counts five and six). At trial, McPartland testified that she did not know defendant other than "[a]s a neighbor." Rivas stated that when he was at the Arlington Avenue home, he purchased the heroin from "A or Unc[, b]ut his real name is Rick." He also stated that Unc lived in the basement of the Arlington Avenue home and that he handed the $60 in marked bills to Unc, not defendant. Rivas testified that he did not intend to give the heroin to Detective Metz but rather was going to keep it for himself. The court's jury instructions did not contain an identification charge. The jury returned a verdict and found defendant guilty of counts one, three, and five , (the heroin charges) and not guilty of counts two, four, and six (the suboxone charges). Judge Deitch denied the State's request to sentence defendant as a persistent offender, N.J.S.A. 2C:43-7 and 2C:44-3(a), but granted its request to A-5819-17T1 7 sentence defendant to a mandatory extended term on count three pursuant to N.J.S.A. 2C:43-7 and 2C:43-6(f). Before issuing its sentence, the court applied aggravating factor three, N.J.S.A. 2C:44-1(a)(3) ("The risk that the defendant will commit another offense."), based on defendant's prior drug use and his "lack of stable employment." The court applied aggravating factor six, N.J.S.A. 2C:44-1(a)(6) ("The extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted."), based on defendant's six prior convictions. Applying aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) ("The need for deterring the defendant and others from violating the law ."), the court found "a real and definite need to deter" defendant from engaging in further criminal conduct. Finally, the court found aggravating factor eleven, N.J.S.A. 2C:44-1(a)(11) ("[Not] imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business."), applicable after concluding "a noncustodial sentence or a slight sentence would be seen by the defendant or others simply as a cost of doing business." The court also considered the application of mitigating factors and concluded the aggravating factors "substantially outweigh the mitigating factors, which are nonexistent." A-5819-17T1 8  The court then merged counts one and three into count five, a second- degree crime with a sentencing range of five to ten years. The court "declin[ed] to impose a discretionary extended term as requested by the State," which would have converted the sentencing range on the merged count to ten to twenty years or that of a first-degree crime, because other sentencing options would better "serve the interests of justice." The court also noted it declined to impose the discretionary extended term on count five because it was "impressed by the fact that [defendant] ha[s] a loving and supportive family" and defendant "came into court and . . . owned up to what happened." However, because of defendant's extensive criminal history the court concluded this "was [not] a one-off thing" aimed to "str[ike] the right balance between the crime, the punishment[,] and the person here." On count one, the court sentenced defendant to four years imprisonment with sixteen months of parole ineligibility. The court sentenced defendant on count three to eight years of imprisonment with a period of thirty-two months of parole ineligibility. On the final merged count, the court sentenced defendant to eight years of imprisonment with a period of thirty-two months of parole ineligibility. The JOC provides that sentencing on counts one, three, and five are "to run concurrent" but also indicates that count one and three merge into A-5819-17T1 9 count five. The court also imposed corresponding fines on each count totaling $4455. This appeal followed. II. In defendant's first point, he contends for the first time on appeal that the court committed error in failing to give an identification charge because "the prime thrust of [defendant's] defense challenged [his] identification . . . and specifically, pointed to the well-known estimator variable of distance." He claims that an identification charge was appropriate because "not a single witness . . . could . . . point out [defendant] and say, I saw drugs in his possession." As a result, defendant concludes the court should have "provide[d] . . . instruction on eyewitness identification . . . [and] application of the estimator variable of distance." In support, defendant relies upon the Supreme Court's opinions in State v. Henderson, 208 N.J. 208 (2011), and State v. Cotto, 182 N.J. 316 (2005), and our decision in State v. Davis, 363 N.J. Super. 556 (App. Div. 2003). We disagree with defendant's arguments. We review a "missing instruction on identification . . . for plain error." State v. Sanchez-Medina, 231 N.J. 452 , 468 (2018) (citations omitted). "Any error or omission shall be disregarded . . . unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ." Ibid. The possibility A-5819-17T1 10 of such an unjust result must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325 , 336 (1971). Defendant carries the burden of showing plain error. State v. Morton, 155 N.J. 383 , 421 (1998). We consider "[d]efendant's failure to 'interpose a timely objection [to] constitute[] strong evidence that the error belatedly raised here was actually of no moment.'" State v. Tierney, 356 N.J. Super. 468 , 481 (App. Div. 2003) (quoting State v. White, 326 N.J. Super. 304 , 315 (App. Div. 1999)). Absent a request to charge or objection, "there is a presumption that the charge . . . was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J. 157 , 182 (2012) (citing Macon, 57 N.J. at 333-34 ). Further, any alleged plain "error must be evaluated 'in light of the overall strength of the State's case.'" Sanchez-Medina, 231 N.J. at 468 (quoting State v. Galicia, 210 N.J. 364 , 388 (2012)) (addressing an identification issue where "[d]efendant's convictions rest largely on the testimony of four victims, only one of whom could identify him" as "[t]he witnesses' descriptions of their assailants varied"). In Henderson, a defendant challenged an identification on the ground police officers had unduly influenced the eyewitness. 208 N.J. at 217 . The A-5819-17T1 11 eyewitness initially expressed doubt about the identity of the perpetrator but was able to confidently identify the defendant after meeting with investigators. Id. at 223-24. The Court identified numerous factors that can affect the ability of a witness to remember and identify perpetrators of crimes, resulting in misidentifications, and ordered an amplified, comprehensive jury charge. Id. at 298-99. The Model Jury Charges (Criminal), "Identification: In-Court and Out- of-Court Identifications" (rev. July 19, 2012) was then drafted and adopted by the Court. In Sanchez-Medina, the Court made clear that "[w]hen eyewitness identification is a 'key issue,' the trial court must instruct the jury how to assess the evidence—even if defendant does not request the charge." Id. at 466 (quoting Cotto, 182 N.J. at 325 ). For the failure to deliver the charge to be plain error, however, identification must be "a critical issue at trial that defendant disputed." Id. at 469; see also Cotto, 182 N.J. at 325 . An issue is made a "key issue" if it is "the major, if not the sole, thrust of the defense." State v. Green, 86 N.J. 281 , 291 (1981). And, we must also consider the error "in light of 'the totality of the entire charge, not in isolation.'" Ibid. (citation omitted). Based on our independent review of the record, we conclude that the trial court's failure to give a detailed identification charge is not "of such a nature as A-5819-17T1 12 to have been clearly capable of producing an unjust result." See R. 2:10-2. Here, the jury was clearly instructed that the State must prove beyond a reasonable doubt that defendant committed the crimes for which he was charged. In this regard, the court specifically instructed the jury to determine whether "the State has proven beyond a reasonable doubt that the defendant[] violated a specific criminal statute." The court's reasonable doubt charge repeatedly referred to "defendant's guilt." Further, when detailing the elements of each of the charges against defendant, the court repeatedly stated that an element of each is "[t]hat the defendant possessed . . . heroin [or suboxone]." Additionally, the court charged the jury to "weigh the testimony of each witness and then determine the weight to give it," specifically asking the jury to consider a witness's "means of obtaining knowledge of the facts" and to the extent the witness is "corroborated or contradicted . . . by other evidence." The court also charged the jury on circumstantial evidence stating "[i]t is not necessary that all the facts be proven by direct evidence" and that a guilty verdict "may be based on . . . circumstantial evidence alone or a combination of direct evidence and circumstantial evidence." Defendant's reliance on State v. Davis for the proposition that trial courts have a duty "to instruct the jury on the prosecution's burden of proving A-5819-17T1 13 identification, even without a defense request" is misplaced. See 363 N.J. Super. at 558 . In Davis, we found "[o]n the facts presented," the absence of a detailed identification charge constituted plain error. Id. at 558-62. The defendant in Davis was convicted of distributing cocaine within 100 feet of a school after he purportedly sold it to a Drug Enforcement Agency officer who had never seen him before and identified him twenty-five minutes after the drug transaction through a single photo. Ibid. We described defendant's case as "squarely one of misidentification" and noted "it is possible that the corroborative evidence against a defendant may be sufficiently strong that the failure to give an identification instruction does not constitute plain error." Ibid. (citing State v. Salaam, 225 N.J. Super. 66 , 70 (App. Div. 1988)). Based on the facts before us in that case, we found plain error in part because "the court gave no instruction whatsoever as to the State's obligation to prove identification beyond a reasonable doubt." We noted "the complete absence of any reference to identification as an issue or as an essential element of the State's case is improper." Ibid. Defendant also relies on State v. Cotto for the proposition that "the trial court never explained to [defendant]'s jury that the State had the burden of proving that he was the individual who committed the crime." See 182 N.J. at A-5819-17T1 14 325-26. In that case, the Supreme Court, despite concluding that identification was a "key" issue, nonetheless affirmed a conviction where the jury was not provided a detailed identification charge. Id. at 326-27. The Court held a jury is properly instructed if the charge makes clear that "the State bears the burden of proving beyond a reasonable doubt that the defendant is the wrongdoer." Ibid. The Court found the charge to that jury, which stated the State must prove "each and every element of the offense, including that of the defendant's . . . participation in the crime," satisfied this requirement. Ibid. Under all the circumstances presented, we are not convinced that the court’s failure to sua sponte give an identification charge had the clear capability to bring about an unjust result. Unlike in Davis, the evidence against defendant was substantial and included Sergeant Alston's testimony that clearly identified defendant outside his house. That testimony was corroborated by the marked currency and a phone with text messages to and from Rivas's phone about the drug transaction found in defendant's possession at the time of the arrest. III. With respect to defendant's second point, we note that the parties do not dispute that the doctrine of merger applies to defendant's convictions. Rather, A-5819-17T1 15 they dispute whether a remand is necessary to amend the JOC. We agree with defendant and conclude a remand is necessary. N.J.S.A. 2C:1-8(a) governs merger of offenses and "focus[es on] whether the offense charged and the related offense share a common factual nucleus." State v. Thomas, 187 N.J. 119 , 130 (2006). "[A] separate sentence should not be imposed on the count which must merge with another offense." State v. Trotman, 366 N.J. Super. 226 , 237 (App. Div. 2004). Courts merge convictions where multiple counts otherwise call for "double punishment for a single wrongdoing." State v. Diaz, 144 N.J. 628 , 637 (1996). Without applying the merger doctrine, a defendant's sentence could run afoul of the Double Jeopardy Clauses in the Federal and New Jersey Constitutions. State v. Eigenmann, 280 N.J. Super. 331 , 336-37 (App. Div. 1995); see also U.S. Const. amend. V; N.J. Const., art. I, para. 11. Here, counts one and three unequivocally merged into count five, as the court concluded in its oral decision. See State v. Rechtschaffer, 70 N.J. 395 , 415-16 (1976); State v. Gregory, 336 N.J. Super. 601 , 608 (App. Div. 2001). The court, however, erred by imposing separate sentences on each count. Moreover, the JOC states the sentence on each count is "to run concurrent" to each other and imposed various fines for each charge. Accordingly, we vacate A-5819-17T1 16 the JOC's separate sentences imposed on counts one and three and remand the matter for the limited purpose of amending the JOC to accurately reflect the merger of defendant's convictions and to correct any assessed penalties. IV. In his final point, defendant contends his sentence is excessive. Notably, he does not challenge the court's decision to merge counts one and three to count five or application of the aggravating and mitigating factors. Instead, he generally claims that because there was "nothing particularly egregious about the offenses" he requests we remand the matter for resentencing. We have considered these arguments and conclude they are sufficiently without "merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). The sentence does not shock our conscience and was consistent with the standards detailed in the Code of Criminal Justice. See State v. Fuentes, 217 N.J. 57 , 70 (2014). Affirmed in part and remanded in part. A-5819-17T1 17

2020-12-02 15:10:07.483283+00

http://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/unpublished/a4503-19.pdf

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4503-19T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. IZAIYAH GRISSOM, Defendant-Appellant. _______________________ Submitted November 2, 2020 – Decided December 2, 2020 Before Judges Fasciale and Susswein. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 17-11-3140. Joseph E. Krakora, Public Defender, attorney for appellant (Earnest G. Ianetti, Designated Counsel, on the brief). Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM  Defendant, Izaiyah Grissom, appeals from an August 3, 2020 order denying his release under Rule 3:21-10(b)(2) due to the COVID-19 pandemic. Along with entering that order, Judge Michael Ravin also rendered a comprehensive twelve-page written opinion. We affirm. Defendant pled guilty to conspiracy to commit theft. In exchange for defendant's guilty plea, the State agreed to dismiss robbery and related weapons charges. Judge Ravin sentenced defendant to probation. Thereafter, defendant was arrested and charged with assault, theft, and obstructing the administration of law. He also failed to cooperate in substance abuse testing and counseling as directed by his probation officer. Accordingly, Judge Ravin revoked his probation and re-sentenced defendant to a four-year prison term. Defendant becomes eligible for parole in February 2021. Defendant raises the following contentions for our consideration: POINT I THE MOTION JUDGE'S FINDING THAT DEFENDANT-APPELLANT'S HEALTH IS NOT RAPIDLY DETERIORATING DOES NOT JUSTIFY DENYING DEFENDANT-APPELLANT RELEASE TO PARTICIPATE IN AN IN-PATIENT DRUG REHABILITATION PROGRAM. POINT II REQUIRING DEFENDANT-APPELLANT TO SERVE THE REMAINING TWO YEARS OF HIS A-4503-19T4 2  SENTENCE IN ISOLATION VIOLATES THE EIGHTH AMENDMENT'S CRUEL AND UNUSUAL CLAUSE AND THE CRUEL AND UNUSUAL CLAUSE OF THE NEW JERSEY CONSTITUTION, ART. I, ¶ 12. We disagree with defendant's arguments and affirm substantially for the reasons set forth in Judge Ravin's thorough and thoughtful written opinion. We add the following remarks. An inmate seeking release from custody under Rule 3:21-10(b)(2) has the burden of establishing the grounds for release by making two showings. First, the inmate must establish that a "change of circumstances" has led to a "severe depreciation" of his or her health since the time of sentencing. State v. Wright, 221 N.J. Super. 123 , 127 (App. Div. 1987). Second, the inmate must demonstrate that "medical services unavailable at the prison" are "essential to prevent further deterioration" of [the inmate's] health." State v. Priester, 99 N.J. 123 , 135 (1985). Our Supreme Court has recognized that "the worldwide pandemic that has afflicted New Jersey and its prison system amounts to a change in circumstances under the Rule." In re Request to Modify Prison Sentences, Expedite Parole Hearings, and Identify Vulnerable Prisoners, 242 N.J. 357 , 379 (2020). Nonetheless, "the nature of the inmate's illness and the effect of continued A-4503-19T4 3 incarceration on his health" continue to remain the necessary "predicate for relief" under Rule 3:21-10(b)(2). Ibid. (quoting Priester, 99 N.J. at 135). Furthermore, disposition of a motion under this Rule is "an extension of the sentencing power," and "is committed to the sound discretion of the court." Priester, 99 N.J. at 135 . A court abuses its discretion when it relies on an impermissible basis, considers irrelevant factors, or makes a clear error in judgment. See State v. S.N., 231 N.J. 497 , 500 (2018). Judge Ravin found that defendant's medical records support his claim that he suffers from asthma and acknowledged that persons with moderate to severe asthma are at higher risk of severe illness due to COVID-19. The judge nonetheless determined that defendant failed to establish a basis for release, finding no indication that defendant has been exposed to the virus or that he is in imminent danger of deteriorating health. The judge also noted that defendant is presently separated from the general prison population for his protection. Furthermore, the judge found that defendant failed to meet his burden of showing that the medical services he sought outside of the prison would be "essential to prevent further deterioration of his health." Priester, 99 N.J. at 135 . Finally, Judge Ravin considered the circumstances of the offense and defendant's conduct that resulted in revocation of his probation and re - A-4503-19T4 4 sentencing. Defendant's failure to abide by the conditions of his probation — including community service and cooperation with substance abuse evaluation and counseling—weighed heavily against granting the relief he seeks. In sum, the record clearly shows that Judge Ravin carefully considered defendant's medical records and all relevant aggravating and mitigating factors. In view of our deferential standard of review, we see no reason to disturb the trial court's well-articulated findings. Defendant also contends, for the first time on appeal, that requiring him to serve the remainder of his custodial sentence in "isolation" violates the Eighth Amendment. This lacks sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). Affirmed. A-4503-19T4 5

2020-12-02 15:10:08.499678+00

http://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/unpublished/a5409-17.pdf

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5409-17T1 STATE OF NEW JERSEY, Plaintiff-Respondent, v. ARVIN A. RIVAS, Defendant-Appellant. _______________________ Submitted November 10, 2020 – Decided December 2, 2020 Before Judges Haas and Natali. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 16-02-0089. Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief). Lyndsay V. Ruotolo, Acting Union County Prosecutor, attorney for respondent (Albert Cernadas, Jr., Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM  After the trial court denied his motion to suppress, a jury convicted defendant of two counts of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1). After merger, defendant was sentenced to a four-year prison term without any parole disqualifiers and assessed applicable fines and penalties. Defendant raises the following issues on appeal: POINT I DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED. POINT II THE SENTENCE OF FOUR YEARS IN NEW JERSEY PRISON WAS EXCESSIVE. After reviewing the record in light of the contentions on appeal and the applicable law, we affirm. I. On August 20, 2015, the Plainfield Police Division (Division) received a tip that a "[h]ispanic male and white female were distributing heroin" from a McDonald's in Plainfield. A few days later, the North Plainfield Police Department notified the Division that one of their sources identified Melissa McPartland (McPartland) as the white female. This source also provided the A-5409-17T1 2 phone number that McPartland purportedly used to conduct narcotic transactions. Shortly thereafter, Detective Joseph Mulligan of the Division texted the phone number and arranged an undercover purchase for "ten folds of heroin." After further communications, the Division decided that Detective Michael Metz would make the undercover purchase at Plainfield High School. In preparation, the Division equipped Detective Metz with a "wireless [audio] transmitter" so other detectives could monitor the transaction. The Division also provided Detective Metz with $80 of marked currency which would be used to purchase the heroin. When Detective Metz arrived at the location no one else was present. He reinitiated contact with the individual who had previously texted Detective Mulligan and was directed to go to a second location at Cedar Brook Park. Once there, Detective Metz received a phone call from a different number. The caller, who had a female voice, instructed Detective Metz to go to yet a third location in Plainfield on Laramie Road. After arriving at that location, "he observed a white female who was later identified as . . . McPartland." Detective Metz then pulled over and McPartland entered the front passenger side of his undercover vehicle. A-5409-17T1 3  Once in the vehicle, McPartland pulled several glassine folds of heroin out from her bra. McPartland then placed the heroin back in her bra and told Detective Metz that it was "trash" and she was "going to get better stuff from someone named Ace." McPartland stated that Ace lived on Arlington Avenue in Newark and that defendant was going to assist in the transaction. McPartland also stated that Ace drove a red Pontiac. Detective Metz was aware from his "dozens" of investigations that Arlington Avenue was a high crime area where narcotics were sold. He also believed that Ace was Malik Canty (Canty) based on the identifying information provided to him by McPartland. In this regard, Detective Metz stated that he was familiar with Canty through previous investigations and knew that he drove a red Pontiac, lived on Arlington Avenue, that his street name was "Ace," and that he sold heroin. Detective Metz then noticed defendant approach the vehicle's front passenger side and speak with McPartland. He handed defendant $70 in marked currency which was understood to be for the heroin. Defendant stepped away and used his cellphone to contact an individual who Detective Metz thought was Canty. When defendant was finished with the conversation, he entered the A-5409-17T1 4 vehicle's rear seat and instructed Detective Metz to drive to an area near Arlington Avenue and Woodbine Avenue. At some point during the ride, defendant told McPartland that he "need[ed] something to put [the heroin] in." McPartland then handed defendant the plastic wrapping from a cigarette container. Upon arrival, defendant exited the vehicle and approached the side of a house located on Arlington Avenue where he met with Canty. Sergeant Troy Alston, one of the back-up units already at the location, observed defendant "hand[] . . . what [he] believed to be currency" to Canty. Sergeant Alston further noted that he saw Canty "look[] at [the money] real quick and then place[] it in his pocket." Sergeant Alston stated that he monitored the conversations in Detective Metz's vehicle via the audio transmitter and that he too was familiar with the residence on Arlington Avenue and Canty from previous narcotics investigations. Defendant and Canty then walked to the rear of the house outside of Sergeant Alston's view. Soon after, however, Sergeant Alston saw defendant reappear and adjust his waistband. Defendant then re-entered the vehicle, indicated that they "were good," and instructed Detective Metz to drive back to Laramie Road. Detective Metz then handed defendant $10 "as a tip." A-5409-17T1 5  As Detective Metz turned down Laramie Road, back up units stopped the car. Defendant was subsequently arrested and searched resulting in the seizure of twenty-seven glassine envelopes of heroin, a cell phone, and Suboxone. 1 Defendant filed a motion to suppress in which he claimed his arrest and the subsequent search violated his Fourth Amendment rights as the police did not have probable cause to stop the vehicle and arrest him. The court denied the motion in an August 24, 2017 order, and in its accompanying oral decision found that "the totality of the circumstances in this case, as viewed by a reasonable [o]fficer with the knowledge, training, and experience of [Sergeant] Alston and Detective Metz, establishes there was probable cause to arrest [defendant]." The court accordingly concluded that "the items that were found on [defendant's] person as search is incident to arrest are . . . admissible." In support of its decision the court found that Sergeant Alston: directly saw [defendant] hand what he believed was money to . . . Canty. The exchange of what he believed to be U.S. [c]urrency. The observation was based on [Sergeant] Alston's training and experience, as well as him . . . visually seeing . . . Canty appear to be counting what was given to him in a manner typical of someone counting currency. 1 Suboxone is a controlled dangerous substance, N.J.S.A. 2C:35–10(a)(1), and used to treat opioid dependence. A-5409-17T1 6  [Sergeant] Alston also saw the object being put into Canty's pocket, which he believed was consistent with it being cash money. The court also noted that "[t]he location that defendant . . . direct[ed] [Detective Metz] to is considered a . . . high crime area . . . [and t]he exact house [was] known among [l]aw [e]nforcement [o]fficers as one where controlled dangerous substances [we]re sold and purchased." In turn, the court found that "it [wa]s reasonable to believe that when . . . defendant . . . disappeared for a brief moment and reappeared shortly thereafter, that a crime had been committed, namely the sale of . . . [controlled dangerous substances]." The court reasoned that the matter was more akin to a "hand-to-hand transaction[] . . . in a high crime [area]" as in State v. Moore, 181 N.J. 40 (2004), as opposed to the circumstances in State v. Pineiro, 181 N.J. 13 (2004). The court noted that in Moore, "the [o]fficers were able to witness an exchange of U.S. [c]urrency and an unidentified item" whereas in Pineiro, "all that the police saw were two individuals on a street corner in a high crime area passing a pack of cigarettes from one person to another." The court explained that here: [T]he [o]fficer witnessed what he believed was an exchange of currency within a high crime . . . area between someone who he knew to be involved in the dealing of drugs . . . in the context of this undercover buy. When you look at the facts, taking the totality of the circumstances, consider the experience and training A-5409-17T1 7  of the [p]olice [o]fficers in this case, it does result in a finding of probable cause. As noted, defendant was convicted of third-degree possession of a controlled dangerous substance and sentenced to a four-year prison term. Before issuing its sentence, the court applied aggravating factor three, "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3), based "upon [defendant's] extensive juvenile record." The court noted that defendant "has eight adjudicated delinquencies" and several violations of parole. The court also found that defendant had "receiv[ed] stolen property in 2001" and "lack[ed] stable employment." The court also applied aggravating factors six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," N.J.S.A. 2C:44-1(a)(6), and nine, "[t]he need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44- 1(a)(9), based upon defendant's "record as an adult." The court noted that defendant was previously convicted of possession, distribution of imitation drugs, and shoplifting. The court concluded that "[t]here's a need clearly, a real and definite need to deter [defendant] from engaging in criminal activity in the future." This appeal followed. A-5409-17T1 8  II. In his first point, defendant contends that the court erred in denying his motion to suppress because the police lacked probable cause "for the warrantless stop of his motor vehicle and the subsequent search and seizure." Defendant further contends that he was subject to an improper Terry stop. See Terry v. Ohio, 392 U.S. 1 , 19 (1968). We disagree with both arguments. Our review of the trial court's decision on a motion to suppress is limited. State v. Robinson, 200 N.J. 1 , 15 (2009). "An appellate court reviewing a motion to suppress evidence in a criminal case must uphold the factual findings underlying the trial court's decision, provided that those findings are 'supported by sufficient credible evidence in the record.'" State v. Boone, 232 N.J. 417 , 425-26 (2017) (quoting State v. Scriven, 226 N.J. 20 , 40 (2016)). We do so "because those findings 'are substantially influenced by [an] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Gamble, 218 N.J. 412 , 424-25 (2014) (alteration in original) (quoting State v. Johnson, 42 N.J. 146 , 161 (1964)). "The governing principle, then, is that '[a] trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction.'" Robinson, 200 N.J. at 15 (alteration in original) (quoting State v. A-5409-17T1 9 Elders, 192 N.J. 224 , 244 (2007)). "We owe no deference, however, to conclusions of law made by trial courts in deciding suppression motions, which we instead review de novo." State v. Brown, 456 N.J. Super. 352 , 358-59 (App. Div. 2018) (citing State v. Watts, 223 N.J. 503 , 516 (2015)). Applying the de novo standard of review to the motion judge's legal conclusions, "[w]e review this appeal in accordance with familiar principles of constitutional law." State v. Robinson, 228 N.J. 529 , 543 (2017). "Both the United States Constitution and the New Jersey [c]onstitution guarantee an individual's right to be secure against unreasonable searches or seizures." State v. Minitee, 210 N.J. 307 , 318 (2012) (citing U.S. Const. amend. IV; N.J. Const. art. I, para. 7). Thus, searches and seizures conducted without a warrant "are presumptively invalid as contrary to the United States and the New Jersey Constitutions." Pineiro, 181 N.J. at 19 (citing State v. Patino, 83 N.J. 1 , 7 (1980)). As such, "the State must demonstrate by a preponderance of the evidence" that "[the search] falls within one of the few well-delineated exceptions to the warrant requirement." Id. at 19-20 (alteration in original) (quoting State v. Wilson, 178 N.J. 7 , 13 (2003); State v. Maryland, 167 N.J. 471 , 482 (2001)). A-5409-17T1 10  One exception to the warrant requirement authorizes the warrantless search of persons incident to their lawful arrest. See United States v. Robinson, 414 U.S. 218 , 225 (1973). Indeed, because a lawful "custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment[,] . . . a search incident to the arrest requires no additional justification," and the mere "fact of the lawful arrest which establishes the authority to search" justifies "a full search of the person." Ibid.; see also State v. Dangerfield, 171 N.J. 446 , 461 (2002). Probable cause to arrest is "something less than [the] proof needed to convict and something more than a raw, unsupported suspicion." State v. Davis, 50 N.J. 16 , 23 (1967). Probable cause exists when the totality of the facts and circumstances presented to the arresting officer would support "a [person] of reasonable caution in the belief that an offense has been or is being committed." State v. Sims, 75 N.J. 337 , 354 (1978) (quoting Draper v. United States, 358 U.S. 307 , 313 (1959)). The Supreme Court in Moore explained the standard for probable cause: We have often stated that the probable cause standard is not susceptible of precise definition. Nevertheless, our jurisprudence has held consistently that a principal component of the probable cause standard "'is a well- grounded suspicion that a crime has been or is being committed.'" "Probable cause exists where the facts A-5409-17T1 11  and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed." "The substance of all the definitions of probable cause is a reasonable ground for belief of guilt." In determining whether there is probable cause, the court should utilize the totality of the circumstances test . . . . That test requires the court to make a practical, common sense determination whether, given all of the circumstances, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." The factors to be considered in applying that test include a police officer's "common and specialized experience," and evidence concerning the high-crime reputation of an area. Although several factors considered in isolation may not be enough, cumulatively these pieces of information may "become sufficient to demonstrate probable cause." [181 N.J. at 45-46 (citations omitted).] As the trial court correctly found, based on a "totality of the circumstances," the arresting officers had a "well-grounded suspicion" that a narcotics transaction occurred. Indeed, Sergeant Alston testified at the suppression hearing that he was aware of several narcotics investigations involving Canty at the time of defendant's arrest. Sergeant Alston further noted that the Arlington Avenue area was a narcotics "problem area" and on a prior occasion he physically "went into the downstairs apartment [of the Arlington A-5409-17T1 12 Avenue home] and located a quantity of drugs." Moreover, Sergeant Alston stated that he saw defendant exchange what he believed was currency with Canty and "adjust his pants" as he returned to Detective Metz's vehicle. Further, Sergeant Alston was able to hear Detective Metz's conversation with defendant and McPartland throughout this incident via the audio transmitter. When police are involved in a collaborative investigation, the probable cause analysis is not limited to the knowledge possessed by the officer who effects the arrest. See United States v. Belle, 593 F.2d 487 , 497 n.15 (3d Cir. 1979) (citations omitted) ("The collective knowledge of the investigating officers is measured in determining probable cause."); see also State v. Crawley, 187 N.J. 440 , 457 (2006). In disputing that the arresting officers had probable cause for his arrest and attendant search, defendant compares this case with Pineiro. We are not persuaded. In Pineiro, an officer on routine patrol in a high drug area saw two men "standing on the corner," and saw the defendant openly "give [the other man] a pack of cigarettes." 181 N.J. at 18 . The Court emphasized repeatedly that "[t]he activity observed by [the officer] was the passing of a cigarette pack." Id. at 29. Although the officer, whose experience was not detailed, was "aware A-5409-17T1 13 that a cigarette pack sometimes is used to transport drugs," the Court stressed that: there was no proof of "regularized police experience that objects such as [hard cigarette packs] are the probable containers of drugs." The sum of the evidence was merely the officer's prior general narcotics training and experience, and his conclusory testimony that he knew that cigarette packs are used to transport drugs because he had seen that type of activity before. The evidence did not even include the number of times the officer had encountered the use of cigarette packs to exchange drugs or what percentage of observed cigarette packs held drugs. [Id. at 28 (quoting State v. Demeter, 124 N.J. 374 , 385- 86 (1991)).] Here, as discussed, Sergeant Alston did not merely observe an individual casually exchanging a pack of cigarettes. Rather, he participated in a coordinated undercover operation that included incriminating conversations with McPartland and defendant that were further informed by his general experience and prior involvement with Canty. Defendant also contends that the police made an improper Terry stop before arresting him. See Terry, 392 U.S. at 19 . An investigatory detention or Terry stop occurs "when an objectively reasonable person feels that [their] right to move has been restricted." State v. Nishina, 175 N.J. 502 , 510 (2003) (quoting State v. Rodriguez, 172 N.J. 117 , 126 (2002)). A temporary Terry stop A-5409-17T1 14 is proper "if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity." Pineiro, 181 N.J. at 20 (quoting Nishina, 175 N.J. at 510 ). However, an investigative stop based on "a mere hunch" is invalid. State v. Coles, 218 N.J. 322 , 343 (2014). We disagree that there was an improper Terry stop. Detective Metz's vehicle was stopped not upon a reasonable suspicion but probable cause that defendant had committed crime. As the police had probable cause to arrest defendant, they clearly had a reasonable articulable suspicion to conduct a Terry stop. See State v. O'Neal, 190 N.J. 601 , 611-12 (2007) ("The standard for a Terry stop 'is lower than the standard of probable cause necessary to justify an arrest.'" (quoting Nishina, 175 N.J. at 511 )). In sum, we conclude that the court's decision to deny defendant's motion to suppress was supported by "sufficient credible evidence in the record" and the legal principles were appropriately applied. State v. Hinton, 216 N.J. 211 , 228 (2013) (quoting State v. Handy, 206 N.J. 39 , 44 (2011)); State v. Harris, 181 N.J. 391 , 416 (2004). III. In defendant's second point, he contends that the court should have imposed a "sentence of probation conditioned upon serving 364 days in the A-5409-17T1 15 county jail with a requirement of successful completion of an in-patient drug rehabilitation program."2 He asserts not that the court misapplied the aggregate and mitigating factors, but rather that his four-year sentence was excessive because it was inconsistent with "the goals set forth in [N.J.S.A. 2C:35-14]." He specifically maintains that had he "committed or been found guilty of a more serious crime where there was a presumption of incarceration or period of parole ineligibility, it would have been mandatory that he be sentenced to special probation." We have considered these arguments and conclude they are sufficiently without "merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). The sentence does not shock our conscience and was consistent with the standard s detailed in the Code of Criminal Justice. See State v. Fuentes, 217 N.J. 57 , 70 (2014). Affirmed. 2 The State contends the sentencing argument is moot as defendant was paroled on November 14, 2019. We have nevertheless considered, and reject, defendant's arguments on the merits. A-5409-17T1 16

2020-12-02 15:10:10.763887+00

http://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/unpublished/a0630-19.pdf

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0630-19T2 NDEYE SENE EP NDIAYE Plaintiff-Respondent, v. MOUHAMADOU A. NDIAYE, Defendant-Appellant. __________________________ Argued August 25, 2020 – Decided December 2, 2020 Before Judges Geiger and Mitterhoff. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-0303-19. Mouhamadou A. Ndiaye, appellant, argued the cause pro se. Ndeye Sene Ep Ndiaye, respondent, argued the cause pro se. PER CURIAM  In this dissolution matter, defendant Mouhamadou Ndiaye appeals from a Family Part judge's August 30, 2019 order denying his motions for reconsideration and her September 16, 2019 entry of a final judgment of divorce (FJOD) by default. Defendant alleges an outstanding complaint for divorce in Senegal predated the instant action, depriving the New Jersey courts of jurisdiction, and necessitating reversal. In addition, he alleges that the entry of the FJOD was procedurally deficient because he did not receive the required notice under Rule 5:5-10. Having reviewed the record and applicable law, we affirm. We discern the following facts from the record. The parties were married on July 30, 2010, in Senegal. In October 2011, the couple moved to New Jersey. One child was born during the marriage on September 28, 2012. 1 The parties lived together until defendant relocated to Massachusetts in 2016. 2 Defendant filed a complaint for divorce in Senegal in 2016, which was dismissed on or 1 The child resides in Senegal with plaintiff's sister. She is not in the custody of either party and is outside the jurisdiction of this court. No issues of custody are involved in the underlying action. 2 Plaintiff initially filed an application for spousal support in 2016, but withdrew it prior to disposition of the dissolution action. A-0630-19T2 2 about June 14, 2017, for lack of jurisdiction. Plaintiff filed the instant complaint seeking dissolution of the marriage on July 26, 2018. On October 29, 2018, plaintiff filed a motion for substituted service via certified mail pursuant to R. 5.5-4(b). On January 11, 2019, the judge denied the motion finding plaintiff had not made adequate diligent inquiry into defendant's address as required by R. 5:4-4(c)(1)-(2). On May 2, 2019, the judge granted plaintiff's motion to effect substituted service by publication. On May 17, 2019, plaintiff filed a request for entry of default supported by an affidavit of service by publication, and the judge set a default hearing for June 28, 2019. On June 27, 2019, a day before the scheduled default hearing, defendant filed a motion to dismiss plaintiff's complaint claiming the court lacked jurisdiction due to the pending Senegalese action. Attached to defendant's motion was a summons from a Senegalese court that provided notice of a court date on June 3, 2019. It did not include a certification as to when the complaint for divorce was filed, it did not include a copy of the alleged complain t, and it did not include a certification authenticating the summons' translation. On June 28, 2019, the judge directed plaintiff to file a cross-motion or opposition to the motion to dismiss by July 8, 2019, and ordered defendant to reply by July 10, 2019. A-0630-19T2 3  On July 5, 2019, plaintiff attempted to file her opposition at the Hudson County courthouse but was unable to do so due to a court closure. 3 Plaintiff mailed her opposition to defendant and the court. Defendant received plaintiff's opposition at 3:04 p.m. on July 11, 2019, while the court received it at 11:27 a.m. on July 10, 2019. 4 On July 12, 2019, the court received a letter from plaintiff explaining she had attempted to file her opposition on July 5, 2019, but could not because the courthouse was closed, so she mailed her opposing papers. Attached to plaintiff's opposition was an order issued by a Senegalese court dismissing the Senegalese complaint for lack of jurisdiction.5 Defendant replied on July 12, 2019, arguing the judge should consider his motion unopposed because plaintiff failed to timely file her opposition and because the opposition contained formatting deficiencies. On July 18, 2019, the trial judge denied defendant's motion to dismiss the complaint, vacated default against defendant, and directed defendant to file an answer by August 2, 2019. 6 3 Plaintiff had mislabeled her opposition as a cross-motion. 4 Defendant and the court's receipt of plaintiff's opposition papers are confirmed by USPS and UPS tracking numbers. 5 The Senegalese order was not accompanied by a certification of translation. 6 The judge later extended the deadline to answer the complaint to August 9, 2019, at defendant's request. A-0630-19T2 4  By August 12, 2019, because defendant had not filed an answer, plaintiff renewed her request to enter default judgment. On August 30, 2019, the judge denied both of defendant's motions to reconsider, and on September 16, 2019, she issued a FJOD by default. On appeal, defendant presents the following points for our review: POINT I THE TRIAL COURT ERRED BOTH BY ACCEPTING BOTH OF THE PLAINTIFF'S LATE FILINGS OVER OUR OBJECTIONS AND BY NOT NOTIFYING THE DEFENDANT (OR COUNSEL) AFTER NUMEROUS WRITTEN OBJECTIONS SENT TO THE COURT POINT II THE TRIAL COURT ERRED BY DENYING THE DEFENDANT HIS DUE PROCESS AND THE RIGHT TO OPPOSE THE PLAINTIFF'S FILINGS POINT III THE TRIAL COURT ERRED BY FORCING DEFENDANT TO FILE AN ANSWER AND SUBMIT TO THE TRIAL COURT'S JURISDICTION ABSENT AN OPPORTUNITY TO BE HEARD ON THE MERITS OF HIS MOTION POINT IV THE TRIAL COURT ERRED BY DENYING DEFENDANT['S] MOTIONS TO DISMISS A-0630-19T2 5  POINT V THE TRIAL COURT ERRED BY ENTERING A FINAL JUDGMENT OF DIVORCE WITHOUT NOTICE TO THE DEFENDANT (OR COUNSEL) We find defendant's arguments to be without merit and affirm, substantially for the reasons set forth by the trial court on the record on August 30, 2019, adding only the following brief remarks. On review of Family Part cases, we accord deference to the judge's fact- finding because of "the family courts' special jurisdiction and expertise in family matters[.]" Cesare v. Cesare, 154 N.J. 394 , 413 (1998). Such findings "are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. We will reverse only if those findings "are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 412 (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474 , 484 (1974)). However, we afford no deference to the judge's interpretation of the law. D.W. v. R.W., 212 N.J. 232 , 245 (2012). Contrary to defendant's argument, there is simply no question that the Family Part had jurisdiction over this dissolution matter concerning two individuals who resided in New Jersey for the better part of the marriage, and A-0630-19T2 6 where plaintiff continues to reside. N.J.S.A. 2A:34-8. We reject, as did the trial judge, defendant's assertion that the Senegalese action, which was dismissed for lack of jurisdiction, defeated jurisdiction in this State. See Sensient Colors, Inc. v. Allstate Ins. Co., 193 N.J. 373 , 386-87 (2008). In that regard, defendant presented no evidence sufficient to establish the jurisdiction of Senegalese courts over the dissolution of the parties' marriage. The Senegalese summons defendant relies upon was translated but was not authenticated by a certification of translation; it did not include information necessary to prove the Senegalese complaint preceded this one; nor did it establish substantial similarity with the present litigation. We also reject defendant's argument that he was not afforded due process because it was error to accept plaintiff's late filed opposition. Rule 1:1-2 provides in relevant part: "Unless otherwise stated, any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice. In the absence of rule, the court may proceed in any manner compatible with these purposes . . . ". Rule 1:6-3 prescribes a time frame for filing and serving motion papers. All periods prescribed by the rule, however, are subject to relaxation on court order when failure to doing so would deprive a litigant of procedural due process. See Rubin v. Rubin, 188 N.J. Super. A-0630-19T2 7 155, 158-59 (App. Div. 1982). See also Tyler v. New Jersey Auto. Full Ins. Underwriting Ass'n, 228 N.J. Super. 463 , 468 (App. Div. 1988) ("It is a mistaken exercise of judgment to close the courtroom doors to a litigant whose opposition papers are late but are in the court's hands before the return day for a motion . . ."). In light of plaintiff's good-faith efforts to comply with filing deadlines throughout this case's protracted motion practice, and for the reasons set forth during the August 30, 2019 hearing, we are satisfied the trial judge's decision to accept plaintiff's late filed opposition was not an abuse of discretion. See Tyler, 228 N.J. Super. at 468 . Finally, we reject defendant's argument that notice was required before the final judgment of divorce was entered. Rule 5:5-10 provides, in relevant part: In those cases where equitable distribution, alimony, child support and other relief are sought and a default has been entered, the plaintiff shall file and serve on the defaulting party, in accordance with R. 1:5-2, a Notice of Proposed Final Judgment ("Notice"), not less than 20 days prior to the hearing date. The purpose of the notice provisions embodied in Rule 5:5-10 is to avoid problems "proving the identity and value of distributable assets or in the court's power to enter a judgment of distribution" because "the complaint . . . typically allege[s] only that assets were acquired during the marriage and should be A-0630-19T2 8 equitably distributed without any specification of the assets or their value." Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 5:5-10 (2021). "[W]here no equitable distribution is sought, there is clearly no problem either in proving the identity and value of distributable assets or in the court's power to enter a judgment of distribution." Id. Here, the only relief plaintiff requested of the court was a final judgment of divorce. She did not seek equitable distribution of marital assets, alimony, child support, or a parenting time arrangement. Therefore, defendant was not entitled to notice under Rule 5:5-10. To the extent we have not specifically addressed any of defendant's remaining arguments, we conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. A-0630-19T2 9

2020-12-02 15:10:11.959521+00

http://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/published/a2258-19.pdf

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2258-19T1 MELISSA KNIGHT, Plaintiff-Appellant, APPROVED FOR PUBLICATION v. December 2, 2020 VIVINT SOLAR DEVELOPER, LLC1 APPELLATE DIVISION and PHILIP CHAMBERLAIN, Defendants-Respondents. Submitted October 7, 2020 – Decided December 2, 2020 Before Judges Fuentes, Rose and Firko. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2852-18. Flitter Milz, PC, attorneys for appellant (Cary L. Flitter, Andrew M. Milz and Jody T. Lopez-Jacobs, on the briefs). Ballard Spahr, LLC, attorneys for respondent Vivint Solar Developer, LLC (Daniel JT McKenna and Jenny N. Perkins, on the brief). Montgomery McCracken Walker & Rhoads, LLP, attorneys for respondent Philip Chamberlain (William K. Kennedy and Alexandra S. Jacobs, on the brief). 1 Improperly pled as Vivint Solar.  The opinion of the court was delivered by ROSE, J.A.D. In this Law Division action, plaintiff Melissa Knight filed a complaint alleging violations of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -195, New Jersey Commercial Code, Leases, N.J.S.A. 12A:2A-102 to -109, and common law fraud against defendants Vivint Solar Developer, LLC and its salesperson, Philip Chamberlain. Defendants thereafter moved to compel arbitration and stay the action. Relying on our Supreme Court's then-recent decision in Goffe v. Foulke Management Corporation, 238 N.J. 191 (2019), the trial court granted defendants' motion, concluding the arbitrator must decide threshold issues concerning the overall validity of the parties' purported written agreement, which contained the arbitration provision. Plaintiff now appeals from the court's January 29, 2020 order. Because it is unclear from the record whether plaintiff agreed to arbitrate disputes under the agreement, we vacate the order and remand for a plenary hearing for the trial court to first make that threshold determination. A-2258-19T1 2  I. We summarize the pertinent facts and procedural history from the record before the trial court. In doing so, we note the facts are largely disputed and otherwise undeveloped. Seeking to reduce her energy costs, plaintiff contacted Vivint and inquired about its solar panel service. In April 2016, Vivint sent Chamberlain to plaintiff's home to discuss its services. Plaintiff, a widow, lived in the home with her mother and seven children. According to plaintiff, Chamberlain promised Vivint's solar panels would reduce her energy bills, and that her electric company and Vivint would pay plaintiff for the surplus electricity produced from the solar panels. Plaintiff contends she memorialized that understanding by affixing her signature to the "signature line" of Chamberlain's otherwise blank iPad screen. It is undisputed that Chamberlain never gave plaintiff a hard copy of the agreement that plaintiff believed she signed. Shortly after Vivint installed the solar panels on the roof of her home in early 2017, plaintiff "notic[ed] outrageous withdrawals from [her] checking account in amounts [she] could not afford." Upon receiving "harassing" collection calls from Vivint, plaintiff retained counsel to represent her interests. A-2258-19T1 3  In March 2017, Vivint sent plaintiff's attorney a copy of its Residential Solar Power Purchase Agreement (RSPPA), dated August 2, 2016. The RSPPA listed as customers plaintiff and James Reilly, who had sold the home to plaintiff and her then-husband, James Knight, in 2008. The last page of the seventeen- page RSPPA contains the purported signatures of plaintiff and Reilly; a box above their names contains a checkmark, indicating the customers' assent to arbitration.2 Plaintiff insists she did not sign the RSPPA, which contains the arbitration provision at issue on this appeal. Beginning on the bottom of page ten of the RSPPA, the arbitration provision spans to the top of the page twelve. The "Scope of th[e] Arbitration Provision" is set forth on page eleven and provides, in pertinent part: Either You or We may, without the other's consent, elect mandatory, binding arbitration for any claim, dispute, or controversy arising out of or relating to (i) any aspect of the relationship between You and Us, whether based in contract, tort, statute, or any other 2 It is undisputed that Reilly neither was present during plaintiff's 2016 meeting with Chamberlain nor otherwise involved in the transaction between the parties. When deposed, Chamberlain stated Vivint's computer program "automatically populate[d]" the agreement with the potential owners of the residence, and Chamberlain assumed Reilly – the name automatically inserted by the system – was Knight's husband. According to plaintiff's merits brief, Reilly filed a federal lawsuit alleging "theft of credit identity" against Vivint based on its actions in the present matter. See Reilly v. Vivint Solar, Inc., No. 1:18-cv-12356 (NLH- JS) (D.N.J. June 8, 2020). A-2258-19T1 4  legal theory; (ii) this Agreement or any other agreement concerning the subject matter hereof; (iii) any breach, default, or termination of this Agreement; and (iv) the interpretation, validity, or enforceability of this Agreement, including the determination or the scope or applicability of [the arbitration provision] (each a "Dispute"). Any questions about whether any Dispute is subject to arbitration shall be resolved by interpreting this arbitration provision in the broadest way the law will allow it to be enforced. Plaintiff filed this civil action the following year. In November 2018, a different Law Division judge denied without prejudice Vivint's initial motion to compel arbitration. The motion judge was unable to "determine whether or not the arbitration clause ought to be enforced." Accordingly, the judge ordered limited discovery regarding the signing of the RSPPA and "the validity of the . . . arbitration clause," which would "turn on that." In reaching his decision, the judge noted the "number of lawsuits" filed against Vivint and its "admissions" in those matters. Inexplicably – more than four months later – Vivint disclosed another RSPPA, purportedly signed by plaintiff. Dated April 11, 2016, this RSPPA is identical to the August 2, 2016 version, but only identifies Reilly as the customer. Plaintiff's purported signature is affixed above Reilly's printed name on the last page of the April 11, 2016 RSPPA, but her name is not printed on the document. Similar to the first RSPPA, the August 2, 2016 RSPPA contains a A-2258-19T1 5 checkmark above plaintiff's alleged signature, indicating the customer's assent to arbitration. The parties dispute whether Chamberlain displayed the text of either RSPPA on his iPad or otherwise reviewed its terms with plaintiff during their April 2016 meeting at her home. In her November 21, 2018 sworn statement in opposition to Vivint's initial motion to compel arbitration, Knight asserted: Chamberlain "never showed me any contract documents in paper or on the iPad, nor did he mention a contract." When deposed, Chamberlain countered he "thoroughly" reviewed the RSPPA with plaintiff, but acknowledged his iPad only displayed the signature line of the agreement. Chamberlain admitted he intentionally listed a variation of plaintiff's email address on the RSPPA, thereby acknowledging the document was not emailed to plaintiff. According to plaintiff, there were no "check boxes on the iPad" and "Chamberlain never showed me any arbitration clause or mentioned it in any way." Chamberlain generally stated the RSPPA "is discussed with the homeowner in full" and the "homeowner" would have checked the boxes above the signature line. A-2258-19T1 6  In July 2019 – one month after the Supreme Court decided Goffe – Vivint "renewed" its motion to compel arbitration 3 and filed a simultaneous summary judgment motion. 4 At the outset of argument on October 25, 2019, the trial court indicated it had reviewed the previous judge's oral decision, which denied Vivint's motion to compel arbitration without prejudice, and the Supreme Court's holding in Goffe. The trial court then set forth its understanding of the Goffe decision: Now in my reading of this, and I'm not trying to make this simplistic because it's . . . an important case to everyone, but Goffe seems to be on all fours with this case and it . . . basically [states] a case gets arbitrated when it's a claim [of] fraud [in] the contract. If it's a question of the formation of the arbitration clause then the courts hear it. And I think Goffe couldn't be clearer . . . on that issue. . . . There's no attack on the language of the arbitration clause here. It's whether this agreement was lawful . . . . The arguments made by . . . plaintiff that it was done on [Chamberlain's] iPad, she didn't review it, she didn't get copies of the e-mails [because Chamberlain varied her email address.] . . . She never got to approve the cancellation. She didn't understand the contract. It wasn't explained to her. 3 Vivint apparently annexed the April 11, 2016 RSPPA as an exhibit to its motion. 4 Chamberlain did not join Vivint's motion to compel arbitration, but his attorney asserted during argument that plaintiff's claims against Chamberlain would be sent to arbitration if the arbitration provision is enforced. Chamberlain also filed a summary judgment motion. A-2258-19T1 7  And this certainly doesn't go to whether the arbitration clause is valid. It goes to whether the contract is valid. And Goffe further goes [on] to explain the distinctions between the two. . . . [Plaintiff's] challenge is [to] the contract as a whole rather than the arbitration agreement. The court then afforded the parties a full opportunity to present argument. In her effort to distinguish the facts of Goffe from the present matter, plaintiff argued, among other things: Here, in this case, we have a complete factual dispute about what was signed, if anything was signed. The agreement proffered by . . . defendants here is a forgery and a fraud. We have direct testimony on that, that it wasn't signed by . . . plaintiff . . . . [T]he contract is in the name of a man named James Reilly. Miss Knight's name appears nowhere on this contract that . . . defendants seek to compel arbitration under. So there's a clear fact dispute here over what, if anything, was signed. In Goffe, it's important to note . . . that there was a clear and conspicuous arbitration agreement at issue. Here, no arbitration agreement was presented at all to anyone, let alone Miss Knight. This contract was created fraudulently outside of her presence. She never saw any of this contract. .... Now defendants are trying to say this "x" with a signature line [on the RSPPA] is the agreement to . . . a twenty-year contract in somebody else's name that A-2258-19T1 8  [plaintiff] never saw. There's no way under these facts that Miss Knight had an understanding of this contract, the arbitration agreement within there, because it was all hidden from her. [(Emphasis added).] Relying on our Supreme Court's decision in Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430 (2014), plaintiff further argued: "[A]rbitration requires mutual assent. It requires the parties to have an understanding of the terms to which they have agreed . . . . Goffe doesn't change that in any respect." Plaintiff elaborated: In Goffe, there was a signed agreement and there was no dispute about that. Here we don't have a signed agreement. We have an agreement in a total stranger's name with a forged signature on it. So that threshold issue of whether there is any valid agreement to arbitrate, any valid agreement in general cannot be met here. Miss Knight can't have her right to be in court waived on the basis of something she had never seen and that . . . defendants have admittedly hidden from her. [(Emphasis added).] The trial court, however, was not persuaded. Citing Goffe, the court reasoned "the mutual assent issue [here] was to the entire contract." As such, "an arbitrator must resolve plaintiff's claims about the validity of the sales contract, as well as any arbitrator [sic] claims that plaintiff may choose to raise." A-2258-19T1 9 Accordingly, the court granted the motion to compel arbitration and denied summary judgment. One week later, the court sua sponte ordered briefing and a rehearing on December 13, 2019 to reconsider Vivint's motion to compel arbitration in light of a then-recent unpublished opinion from this court,5 because that opinion "discuss[ed] the enforcement of [an] arbitration clause with facts similar to the facts in [the present] case." On the return date of the court's reconsideration motion, before hearing from the parties, the court noted its concerns about limiting its prior ruling to "a single sentence" in the Goffe opinion, i.e., "if the contract's in dispute, you're testing the whole thing, it goes to an arbitrator. . . . If you're just contesting the arbitration clause, then [the court] hear[s] it." In response, plaintiff argued she could not "have agreed to arbitration when she had no notice of the arbitration agreement whatsoever[.]" Pointing to her deposition testimony, plaintiff stated 5 An unpublished opinion has no precedential value "and except to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law, no unpublished opinion shall be cited by an y court." R. 1:36-3. A court may only "acknowledg[e] the persuasiveness of a reasoned decision on analogous facts." Sauter v. Colts Neck Volunteer Fire Co. No. 2, 451 N.J. Super. 581 , 600 (App. Div. 2017). A-2258-19T1 10 "she did not check any boxes" on the RSPPA, including the "box that said that she agreed to the arbitration clause within the [RSPPA]." The court again rejected plaintiff's argument, concluding "this is a cl assic bait and switch [case] just like Goffe," noting defendants "made promises; they got her to sign." Recognizing plaintiff "attempt[ed] to distinguish [her matter] by indicating that the arbitration agreement is almost like separately contested because she didn't sign it, the box wasn't checked," the court found that was "a factual issue," which is not "a distinction that Goffe makes." Accordingly, the court entered the order under review, compelling arbitration and staying the action.6 This appeal followed. On appeal, plaintiff raises several overlapping arguments for our consideration. Distilled to their essence, plaintiff maintains the Supreme Court's decision in Goffe does not abrogate the trial court's function to first ascertain whether the parties mutually assented to arbitrate their disputes. Plaintiff reiterates her argument that defendants committed fraud in the execution and formation of the RSPPA. She further argues she specifically attacked the 6 The order also directs the arbitrator to "decide the threshold issue of whether an agreement to arbitrate was formed and whether that agreement to arbitrate is enforceable. If the arbitrator finds in the affirmative, the arbitrator shall decide the merits of the parties' claims. If the arbitrator finds in the negative, the matter may return to th[e] [c]ourt." A-2258-19T1 11 formation of the arbitration clause through her denial that she checked any boxes on Chamberlain's iPad, including the checkmark in the box assenting to arbitration. She therefore contends she lacked notice of the RSPPA's arbitration provision and did not agree to its terms. II. We exercise de novo review of a trial court's order compelling arbitration. Goffe, 238 N.J. at 207 ; see also Skuse v. Pfizer, Inc., 244 N.J. 30 , 46 (2020). "In reviewing such orders, we are mindful of the strong preference to enforce arbitration agreements, both at the state and federal level." Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174 , 186 (2013). That preference, however, "is not without limits." Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 168 N.J. 124 , 132 (2001). Under section two of the Federal Arbitration Act (FAA), 9 U.S.C. § 1 to 16, states may regulate arbitration agreements under general contract principles. Atalese, 219 N.J. at 441 (quoting Martindale v. Sandvik, Inc., 173 N.J. 76 , 85 (2002)). Accordingly, arbitration clauses may be invalidated on grounds existing at law or equity that call for the revocation of any contract. Ibid. An arbitration agreement must be the product of mutual assent. Id. at 442 (quoting NAACP of Camden Cty. East v. Foulke Mgmt. Corp., 421 N.J. Super. A-2258-19T1 12 404, 424 (App. Div. 2011)). "Mutual assent requires that the parties have an understanding of the terms to which they have agreed." Ibid. "The point is to assure that the parties know that in electing arbitration as the exclusive remedy, they are waiving their time-honored right to sue." Marchak v. Claridge Commons, Inc., 134 N.J. 275 , 282 (1993). Indeed, any contractual waiver of rights, including arbitration provisions, must reflect that the parties have clearly and unambiguously agreed to the terms. Atalese, 219 N.J. at 443 . The parties must have full knowledge of their rights and show an intent to surrender those rights. Id. at 442 -43. That did not occur here. As stated, in granting Vivint's motion, the trial court's decision is rooted in its interpretation of Goffe. While we agree the court was, of course, bound by Supreme Court precedent, we part company with the court's conclusion that the present matter is "on all fours" with Goffe. In the two actions consolidated in that case, the plaintiffs brought various fraud allegations against the defendant car dealerships. 238 N.J. at 202 . Both plaintiffs opposed the defendant's motions to compel arbitration; both plaintiffs claimed they had been fraudulently induced to enter into their contracts with the dealerships. Id. at 202-03. A-2258-19T1 13  In our Goffe published opinion, we reversed the trial courts' decisions compelling arbitration. 454 N.J. Super 260, 284 (App. Div. 2018). In doing so, we held that the formation of a contract is a threshold issue to be decided by the trial court. Id. at 277-78, 283-84. The Supreme Court disagreed and reversed. Writing for the Court, Justice LaVecchia observed that the plaintiffs sought to distinguish their claims by emphasizing their position that there was no mutual assent to arbitrate their claims because the arbitration agreements they signed were "the product of fraud and trickery . . . and were not voluntarily and knowingly agreed to." However, the disputed facts that plaintiffs allege go to whether the dealerships performed a bait-and-switch related to enticing plaintiffs to enter into the contract as a whole . . . . They have not raised a specific claim attacking the formation of the arbitration agreement that each signed. Moreover, the argument that either plaintiff did not understand the import of the arbitration agreement and did not have it explained to her by the dealership is simply inadequate to avoid enforcement of these clear and conspicuous arbitration agreements that each signed. [238 N.J. at 212 (emphasis added).] The Court thus distinguished an arbitration agreement in a previous matter it had considered, again observing: A-2258-19T1 14  Unlike the Guidotti[7] plaintiff, they do not claim not to have seen the arbitration agreement, for their signatures are on the written documents. They do not dispute the validity of the arbitration agreement or its delegation clause other than to say that it is invalid as a result of the invalidity of the contract as a whole. [Id. at 215 (emphasis added).] Having reviewed the record, we conclude there exist questions of fact concerning the mutuality of assent to the arbitration provision, which is necessary to bind both parties to arbitration. Similar to the plaintiffs in Goffe, Knight alleges the RSPPA "as a whole" is invalid. However, in sharp contrast to the plaintiffs in Goffe, Knight challenges the arbitration provision. She asserts Chamberlain neither displayed the provision nor explained its legal ramifications to her at any time. Crucially, plaintiff denies checking any boxes on Chamberlain's iPad "blank" screen, including the box, which would otherwise indicate her assent to be bound by the terms of an arbitration provision. In that regard, she did not "sign" the arbitration agreement. Indeed, plaintiff claims she did not receive the first RSPPA until eleven months after she agreed to the installation of Vivint's solar panels. 7 Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764 (3d Cir. 2013). A-2258-19T1 15  Notably, plaintiff asserted – from the outset of the litigation – that she never checked any boxes on the RSPPA, including the arbitration provision. We therefore reject Vivint's argument that plaintiff only specifically challenged the arbitration provision in her reply brief on reconsideration. In any event, in its ultimate decision, the trial court specifically noted there existed "a factual issue" as to whether plaintiff checked the arbitration box. On the other hand, Chamberlain asserts plaintiff "signed the RSPPA and every agreement on there." He disputes that plaintiff signed a blank screen on his iPad. And Chamberlain claims Vivint's RSPPAs "[are] discussed with the homeowner in full" and the "homeowner" would have checked the boxes above the signature line. Notably, Chamberlain, however, does not claim he provided plaintiff with an electronic or hard copy of the RSPPA at any time. In sum, the arbitrator cannot decide the validity of the RSPPA, unless and until the trial court initially resolves the issues of fact pertaining to the formation of the arbitration provision, and determines the parties agreed to arbitrate their claims. Absent that agreement, the arbitrator is not empowered to determine plaintiff's issues concerning the formation and execution of the RSPPA. In that regard, we are unpersuaded by defendants' argument that because the arbitration agreement is contained within the RSPPA, which plaintiff also challenges, the A-2258-19T1 16 arbitrator must determine its validity. In our view, that procedure puts the cart before the horse. We hasten to add we offer no view on the outcome of the remand proceedings. Reversed and remanded. We do not retain jurisdiction. A-2258-19T1 17

2020-12-02 15:14:24.669933+00

http://www.sccourts.org/opinions/HTMLFiles/COA/5738.pdf

THE STATE OF SOUTH CAROLINA In The Court of Appeals The Kitchen Planners, LLC, Appellant, v. Samuel E. Friedman and Jane Breyer Friedman and Branch Banking and Trust, Respondents. Appellate Case No. 2017-001522 Appeal From Richland County Robert E. Hood, Circuit Court Judge Opinion No. 5738 Heard December 10, 2019 – Filed July 1, 2020 Withdrawn, Substituted, and Refiled December 2, 2020 AFFIRMED Jean Perrin Derrick, of Jean Perrin Derrick, LLC, of Lexington, for Appellant. Charles A. Krawczyk, of Finkel Law Firm, LLC, of Columbia, for Respondents. LOCKEMY, C.J.: The Kitchen Planners, LLC (Kitchen Planners) appeals the circuit court's order granting summary judgment in favor of Samuel E. and Jane Breyer Friedman (collectively, the Friedmans) as to Kitchen Planners' action for a mechanic's lien and foreclosure. Kitchen Planners argues the circuit court erred by (1) finding there was no genuine issue of material fact as to its claim for a mechanic's lien, (2) denying its motion to strike Mr. Friedman's affidavit, and (3) awarding attorney's fees to the Friedmans. We affirm. FACTS In 2015, the Friedmans and Kitchen Planners entered into a contract, pursuant to which Kitchen Planners was to provide and install kitchen cabinets in the Friedmans' home in exchange for $49,784.04, plus $2,995 for delivery and installation. The parties agreed the Friedmans would pay the contract price in three installments consisting of one-third at the time of ordering, one-third at the time of shipment, and the final third at the time of delivery. The Friedmans paid two-thirds of the contract price prior to delivery of the cabinets. However, when the cabinets arrived at their home on May 21, 2015, they were dissatisfied with the product and never paid the final one-third of the contract price. Kitchen Planners filed a mechanic's lien and statement of account on November 12, 2015, pursuant to sections 29-5-10 to -440 of the South Carolina Code (2007 & Supp. 2019) seeking the third installment of $16,594.68. It served the Friedmans on November 17, 2015, and filed its complaint and a lis pendens on January 13, 2015. Kitchen Planners alleged in its complaint that it "furnished materials, supplies, and labor beginning in or around March 16, 2015 and continuing through August 18, 2015." In their answer, the Friedmans asserted several defenses, including failure to properly file a mechanic's lien and violation of section 29-5-100. The Friedmans also asserted counterclaims against Kitchen Planners, including breach of contract, negligent supervision, and negligent misrepresentation. They alleged Kitchen Planners' measurements were incorrect and the cabinets had remained in their garage and were never installed in their home. Subsequently, on January 19, 2017, the Friedmans filed a motion titled "motion to dismiss mechanic's lien and foreclosure," requesting "dismissal pursuant to [sections] 29-5-10[ and] 29-5-100 and South Carolina Rule[] of Civil Procedure 56(a) [sic]." They sought dismissal of the lien and of Kitchen Planners' causes of action with prejudice, arguing the lien was invalid and "there [wa]s no issue of fact to support" Kitchen Planners' claims. The Friedmans deposed Patricia Comose, the sole member of Kitchen Planners, on April 7, 2017. Comose testified she held a degree in interior design and a retail license that allowed her to purchase items at wholesale and sell them for retail value. She explained the Friedmans contacted her because they wished to purchase cabinets manufactured by Crystal Cabinets and she was the only dealer for Crystal Cabinets in the Columbia area. Comose stated the Friedmans had incurred water damage in their kitchen and "wanted the kitchen designed" to enable them to replace the cabinets. She recalled some of the elements of the design were the same as the existing designs. Comose stated she visited the Friedmans' home on January 23, 2015, and they signed a "design retainer agreement" and paid a $500 retainer for the planning of the kitchen. The agreement provided that if the Friedmans decided to purchase the cabinets through Kitchen Planners, the $500 fee would be deducted from the purchase price. She stated they discussed the design several times between January 23 and March 16, 2015, and on March 16, Kitchen Planners and the Friedmans entered an agreement "for the ordering of the cabinets." Comose stated she purchased the cabinets for $28,953.58 and her profit margin was thirty-three percent. She acknowledged that prior to delivery of the cabinets, Kitchen Planners had already realized a profit of $4,175 and made additional profit from other items, such as the sink and the cabinet pulls. Comose explained that rather than charging by the hour, she earned profits by purchasing items at wholesale and selling them at retail and did not charge for her time "basically at all." Comose confirmed that when the cabinets were delivered to the Friedmans' home on May 20, 2015, they had some concerns with the product. Comose stated that when the installer arrived the next day to install the cabinets, Mr. Friedman told her he wanted the cabinets removed from the home and a refund. She recalled she and the installer spent several hours at the home that day, unboxing the cabinets and setting them in place so the Friedmans could see how they would look. Comose stated she offered to reorder any portions of the cabinets they were dissatisfied with. She testified she spent the next two or three days preparing a list of items to reorder. Comose stated that when she began reordering items, the Friedmans removed her from the project. She explained the Friedmans contacted Crystal Cabinets directly and Derrick Tackett, a sales representative, took over the reorder process. Comose stated the Friedmans arranged with Tackett to pay dealer cost for the reorder. Comose stated she did not "have anything more to do with the project" after June 18 when Tackett informed her the Friedmans did not want her to be involved. Comose agreed that on August 18, 2015, she received an email from Tackett informing her the Friedmans had taken him off the job as well. Comose admitted, "I understand that we were not allowed to install [the cabinets]." When asked about a check for $550.61 paid on September 29, 2015, for "a re-order of boxes" for the kitchen island, she explained she reordered drawer boxes after Mrs. Friedman complained the boxes they received "could have been deeper." However, Comose did not know why she wrote this check in September as opposed to an earlier date, and she commented, "And I have those, by the way." On April 13, 2017, the Friedmans served a copy of Mr. Friedman's affidavit upon Kitchen Planners by mail. The Friedmans then filed a memorandum titled "memorandum in support of defendant's motion for summary judgment" on April 20, 2017. On April 24, 2017, Kitchen Planners filed a motion to strike the affidavit, arguing it was improper because (1) the Friedmans filed a motion to dismiss and motions to dismiss must be determined by the pleadings only and (2) the affidavit should have been served concurrently with the Friedmans' motion pursuant to Rule 6, SCRCP. It also served and filed Comose's affidavit in opposition, in which she stated she continued to work with Tackett "through November 2015." Comose stated, "For example, on September 29, 2015, I reordered drawer boxes for the island in the kitchen, and paid $550.61." Additionally, she attested another contractor, Viggiano Remodeling, finished the project and "utilized some of the cabinets [she] furnished." In support of this, she attached the contractor's estimate, which stated, "All useable hardware and drawers from the existing Crystal cabinets will be reflected as a credit in final price." The circuit court heard the Friedmans' motion on April 25, 2017. At the outset of the hearing, Kitchen Planners moved to strike Mr. Friedman's affidavit, relying on its written motion to strike and arguing the document was outside of the pleadings and untimely. The Friedmans argued they timely served the affidavit and their motion was a Rule 56, SCRCP, motion for summary judgment rather than a Rule 12(b)(6), SCRCP, motion to dismiss. The court denied the motion to strike, noting Kitchen Planners had sufficient time to review and submit a response to the affidavit. The court then proceeded with the hearing as a hearing on a motion for summary judgment, and Kitchen Planners did not object. The circuit court granted the Friedmans' motion, finding there was no question of material fact that Kitchen Planners failed to timely file and serve the lien according to section 29-5-90. See § 29-5-90 (providing that "within ninety days after he ceases to labor on or furnish labor or materials for such building," a person seeking to enforce a mechanic's lien must "serve[] upon the owner . . . a statement of a just and true account of the amount due him"). It reasoned the face of the lien stated Kitchen Planners furnished materials and labor from "on or about March 11, 2015 through on or about August 18, 2015," and it served the lien on November 17, 2015—which was a difference of ninety-one days. The court noted "no credible evidence exist[ed] to show [Kitchen Planners] provided any materials or labor" after August 18. Additionally, it concluded the materials furnished were not actually used in the erection, alteration, or repair of a building and that Kitchen Planners knowingly claimed more than it was due in violation of section 29-5-100 and failed to commence the foreclosure action within six months. Kitchen Planners filed a motion to reconsider pursuant to Rule 59(e), SCRCP, which the circuit court denied. This appeal followed. ISSUES ON APPEAL 1. Did the circuit court err by granting the Friedmans' motion for summary judgment? 2. Did the circuit court err by denying Kitchen Planners' motion to strike? 3. Did the circuit court err by awarding attorney's fees to the Friedmans? STANDARD OF REVIEW "When reviewing an order granting summary judgment, the appellate court applies the same standard as the trial court." David v. McLeod Reg'l Med. Ctr., 367 S.C. 242 , 247, 626 S.E.2d 1 , 3 (2006). "On appeal from an order granting summary judgment, the appellate court will review all ambiguities, conclusions, and inferences arising in and from the evidence in a light most favorable to the non-moving party below." Hurst v. E. Coast Hockey League, Inc., 371 S.C. 33 , 36, 637 S.E.2d 560 , 561-62 (2006). "Summary judgment is appropriate when 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Hansson v. Scalise Builders of S.C., 374 S.C. 352 , 354-55, 650 S.E.2d 68 , 70 (2007) (quoting Rule 56(c), SCRCP). "[I]n cases applying the preponderance of the evidence burden of proof, the non-moving party is only required to submit a mere scintilla of evidence in order to withstand a motion for summary judgment." Hancock v. Mid-S. Mgmt. Co., 381 S.C. 326 , 330, 673 S.E.2d 801 , 803 (2009). "A court considering summary judgment neither makes factual determinations nor considers the merits of competing testimony; however, summary judgment is completely appropriate when a properly supported motion sets forth facts that remain undisputed or are contested in a deficient manner." Gecy v. S.C. Bank & Tr., 422 S.C. 509 , 516, 812 S.E.2d 750 , 754 (Ct. App. 2018) (quoting M&M Grp., Inc. v. Holmes, 379 S.C. 468 , 473, 666 S.E.2d 262 , 264 (Ct. App. 2008)). "When evidence is susceptible to more than one reasonable inference, the issue should be submitted to the jury." Murphy v. Tyndall, 384 S.C. 50 , 54, 681 S.E.2d 28 , 30 (Ct. App. 2009). LAW/ANALYSIS I. Summary Judgment Kitchen Planners argues the circuit court erred by granting summary judgment in favor of the Friedmans. We disagree. A. Mechanic's Lien "A mechanic's lien is purely statutory. Therefore, the requirements of the statute must be strictly followed." Butler Contracting, Inc. v. Court St., LLC, 369 S.C. 121 , 130, 631 S.E.2d 252 , 257 (2006); see also Shelley Constr. Co. v. Sea Garden Homes, Inc., 287 S.C. 24 , 27, 336 S.E.2d 488 , 490 (Ct. App. 1985) ("[M]echanic's liens are purely statutory and can only be acquired and enforced in accordance with the conditions of the statute creating them."). Sections 29-5-10 to -440 of the South Carolina Code (2007 & Supp. 2019) set forth the requirements for establishing and enforcing a mechanic's lien. "The statutory process encompasses several steps, including the (1) creation, (2) perfection, and (3) enforcement of the lien." Ferguson Fire & Fabrication, Inc. v. Preferred Fire Prot., L.L.C., 409 S.C. 331 , 340, 762 S.E.2d 561 , 565 (2014). "For . . . [the] lien to become valid, the lien must be perfected and enforced in compliance with South Carolina's mechanic's lien statutes." Id. at 342, 762 S.E.2d at 566. Section 29-5-10(a) provides, A person to whom a debt is due for labor performed or furnished or for materials furnished and actually used in the erection, alteration, or repair of a building . . . by virtue of an agreement with, or by consent of, the owner of the building . . . shall have a lien upon the building or structure and upon the interest of the owner of the building . . . to secure the payment of the debt due to him. . . . As used in this section, labor performed or furnished in the erection, alteration, or repair of any building or structure upon any real estate includes the preparation of plans, specifications, and design drawings . . . . As used in this section, materials furnished and actually used include tools, appliances, machinery, or equipment supplied for use on the building or structure to the extent of their reasonable rental value  during their actual use. . . . For purposes of this section, the term "materials" includes flooring, floor coverings, and wall coverings. "[W]hen the labor is performed or material is furnished, the right exists but the lien has not been perfected." Ferguson Fire, 409 S.C. at 341 , 762 S.E.2d at 566 (quoting Butler Contracting, 369 S.C. at 128 , 631 S.E.2d at 256)). "Any material supplied for improving real estate by the erection of a building or structure ordinarily gives rise to a mechanics' lien. Materials must, of course, be incorporated into the structure or become fixtures." 22 S.C. Jur. Mechanics' Liens § 14 (2020) (footnotes omitted). Section 29-5-90 provides that "within ninety days after he ceases to labor on or furnish labor or materials for such building," a person seeking to enforce a mechanics lien must "serve[] upon the owner . . . a statement of a just and true account of the amount due him." Otherwise, the "lien shall be dissolved." Id.; see also Butler Contracting, 369 S.C. at 131 , 631 S.E.2d at 257 ("The deadline to serve . . . a mechanic's lien begins running from the date the last material was furnished . . . ."). The court in Butler explained, [W]he[n] a claimant, after a contract is substantially completed, . . . furnishes additional material [that] is necessary for the proper performance of his contract, and which is done in good faith at the request of the owner or for the purpose of fully completing the contract, and not merely as a gratuity or act of friendly accommodation, the period for filing the lien will run from the . . . furnishing of such materials, irrespective of the value thereof. Butler Contracting, 369 S.C. at 130-31 , 631 S.E.2d at 257 (first alteration in original) (quoting Wood v. Hardy, 235 S.C. 131 , 140, 110 S.E.2d 157 , 161 (1959)). Thus, as we stated in Shelley Construction, [T]o perfect and enforce the lien against the property, the person claiming it must: (1) serve and record a certificate of lien within ninety days after he ceases to furnish labor or materials . . . ; (2) bring suit to foreclose the lien within six months after he ceases to furnish labor or materials . . . ; and (3) file notice of pendency of the  action within six months after he ceases to furnish labor or materials . . . . 287 S.C. at 27 , 336 S.E.2d at 490 (emphases added). If the person claiming the lien "fails to take any one of these steps, the lien against the property is dissolved." Id.1 Section 29-5-100 provides "[n]o inaccuracy in [the] statement relating to the property to be covered by the lien, if the property can be reasonably recognized, or in stating the amount due for labor or materials shall invalidate the proceedings, unless it appear that the person filing the certificate has wil[l]fully and knowingly claimed more than is his due." See also Zepsa Constr. Inc. v. Randazzo, 357 S.C. 32 , 38, 591 S.E.2d 29 , 31-32 (Ct. App. 2004) (holding overhead and profit are recoverable under the mechanic's lien statute only "in the limited situation where the terms of overhead and profit are agreed upon by the parties and are subsequently embodied within a contract"). "Minor imperfections and mistakes in the complaint or petition to foreclose a lien do not affect its validity." 22 S.C. Jur. Mechanics' Liens § 19 (2020). "The court may at any time allow either party to amend his pleadings as in other civil actions." § 29-5-180; see also 22 S.C. Jur. Mechanics' Liens § 19 ("Allegations in a complaint to foreclose a mechanics' lien may be amended."). However, "[i]t is well settled that parties are judicially bound by their pleadings unless withdrawn, altered or stricken by amendment or otherwise." Postal v. Mann, 308 S.C. 385 , 387, 418 S.E.2d 322 , 323 (Ct. App. 1992)); see also Johnson v. Alexander, 413 S.C. 196 , 202, 775 S.E.2d 697 , 700 (2015) ("Parties are generally bound by their pleadings and are precluded from advancing arguments or submitting evidence contrary to those assertions."); Postal, 308 S.C. at 387 , 418 S.E.2d at 323 ("The allegations, statements, or admissions contained in a pleading are conclusive as against the pleader and a party cannot subsequently take a position contradictory of, or inconsistent with, his pleadings and the facts which are admitted by the pleadings are taken as true against the pleader for the purpose of the action."). 1 We also noted dissolution of the lien would not preclude a claimant from maintaining an action on the debt. See id.; § 29-5-420 ("Nothing in this chapter shall be construed to prevent a creditor in such contract from maintaining an action thereon in like manner as if he had no such lien for the security of his debt.").  1. Timeliness Kitchen Planners contends it timely served and filed its mechanic's lien pursuant to section 29-5-90, an amendment pursuant to section 29-5-180 could easily cure the "slight discrepancy" between the date alleged in the lien and the actual date of the last work, and any inaccuracy in the statement of account would not invalidate the proceedings pursuant to section 29-5-100. Kitchen Planners argues that although its lien stated it last furnished materials or labor "on or about August 18, 2015," evidence showed its work did not conclude until September 29, 2015, when it reordered drawer boxes and issued a check to Crystal Cabinets for $550.61. It argues it served and filed its lien within ninety days of September 29, 2015. Kitchen Planners asserts that it also timely commenced the suit for foreclosure on January 13, 2016, which was less than six months after the last work it performed. We disagree. First, we find Kitchen Planners is bound by the dates asserted in its pleadings and on the face of the lien. A claimant seeking to enforce a mechanic's lien must strictly follow the requirements of the statute. See Butler Contracting, 369 S.C. at 130 , 631 S.E.2d at 257. To perfect a mechanic's lien, a claimant must "serve and record a certificate of lien within ninety days after he ceases to furnish labor or materials." Shelley Constr. Co., 287 S.C. at 27, 336 S.E.2d at 490 (emphases added); see also § 29-5-90. Here, on the face of the lien, Kitchen Planners asserted its lien was for materials and labor furnished "beginning on or about March 11, 2015 through on or about August 18, 2015." In its complaint, Kitchen Planners asserted its lien was for labor and materials furnished beginning "in or around March 16, 2015 and continuing through August 18, 2015." Thus, we find Kitchen Planners is bound by the dates asserted in its pleadings and on the face of the lien. See Johnson, 413 S.C. at 202 , 775 S.E.2d at 700; see also Postal, 308 S.C. at 387 , 418 S.E.2d at 323. Although Kitchen Planners argues it was entitled to amend its complaint to change the date it last provided materials, it never requested leave of the circuit court to amend its pleadings; rather, it raises this argument for the first time on appeal. Thus, we find this argument is unpreserved. See Herron v. Century BMW, 395 S.C. 461 , 465, 719 S.E.2d 640 , 642 (2011) ("At a minimum, issue preservation requires that an issue be raised to and ruled upon by the trial judge. It is 'axiomatic that an issue cannot be raised for the first time on appeal.'" (citation omitted) (quoting Wilder Corp. v. Wilke, 330 S.C. 71 , 76, 497 S.E.2d 731 , 733 (1998))). Second, we find the evidence was not sufficient to contest the Friedmans' assertion that August 18, 2015, was the last date labor or materials were furnished. Neither Comose's testimony nor her statement in her affidavit that she paid for a reorder of drawer boxes on September 29, 2015, created a genuine issue of material fact as to when Kitchen Planners last furnished materials. See Gecy, 422 S.C. at 516 , 812 S.E.2d at 754 ("[S]ummary judgment is completely appropriate when a properly supported motion sets forth facts that remain undisputed or are contested in a deficient manner." (quoting M&M Grp., 379 S.C. at 473 , 666 S.E.2d at 264)). Here, Comose testified she provided no materials to the Friedmans after June 18, 2015, and did not know why she did not pay for the drawer boxes until September 29. Although she explained she reordered the drawer boxes because Mrs. Friedman pointed out they could have been deeper, she never stated the Friedmans specifically requested or directed her to reorder them. Comose offered no testimony or other evidence to show these drawer boxes were ever delivered to the Friedmans, and when she testified about this reorder, she stated, "And I have those, by the way." Viewing the evidence in the light most favorable to Kitchen Planners, we find the only inference to be gleaned from this testimony is that these additional items were never delivered to the Friedmans or installed in their home. See § 29-5-10 (providing materials must be "furnished and actually used in the erection, alteration, or repair of a building" to give rise to a lien (emphasis added)); 22 S.C. Jur. Mechanics' Liens § 14 (noting the materials furnished must ordinarily "be incorporated into the structure or become fixtures"); Shelley Constr. Co., 287 S.C. at 27, 336 S.E.2d at 490 ("[T]o perfect and enforce the lien against the property, the person claiming it must . . . serve and record a certificate of lien within ninety days after he ceases to furnish labor or materials . . . ."); Butler Contracting, 369 S.C. at 130-31 , 631 S.E.2d at 257 ("[W]he[n] a claimant, after a contract is substantially completed, . . . furnishes additional material [that] is necessary for the proper performance of his contract, and which is done in good faith at the request of the owner or for the purpose of fully completing the contract, and not merely as a gratuity or act of friendly accommodation, the period for filing the lien will run from the . . . furnishing of such materials, irrespective of the value thereof." (first alteration in original) (quoting Wood, 235 S.C. at 140 , 110 S.E.2d at 161)). Accordingly, we find the evidence and the pleadings show there was no genuine issue of material fact as to the date—August 18, 2015—that Kitchen Planners last furnished materials to the Friedmans. Ninety days from August 18, 2015, would have been November 16, 2015; Kitchen Planners served the Friedmans on November 17, 2015, which was ninety-one days after Kitchen Planners last furnished materials to the Friedmans. Therefore, we find the circuit court did not err by concluding Kitchen Planners failed to timely serve the lien. Further, because Kitchen Planners failed to serve the lien within ninety days, it must be dissolved, regardless of whether the foreclosure action was filed within six months.2 See Shelby Constr., 287 S.C. at 27, 336 S.E.2d at 490 (stating if a person claiming a lien fails to take any one of the three steps required to perfect and enforce the lien, the lien against the property is dissolved). Based on the foregoing, we find the circuit court did not err by granting the Friedmans' motion for summary judgment. 2. Actual Use Next, Kitchen Planners argues there is a genuine issue of material fact as to whether its labor or materials were installed in the Friedmans' home. It contends Viggiano's estimate demonstrated some of the materials it furnished were installed and argues it satisfied section 29-5-10 because it performed all of the labor required under the contract, which was used in the design of the kitchen. Kitchen Planners concedes it recovered the actual wholesale cost of the cabinets but argues it spent "hundreds of hours" designing and implementing the remodeling of the kitchen and was entitled to the balance of the contract price for its labor and the expense of the cabinets.3 We disagree. Viewing the evidence in the light most favorable to Kitchen Planners, we find it failed to show the materials were actually used in the Friedmans' home. See § 29-5-10 ("A person to whom a debt is due for . . . materials furnished and actually used in the erection, alteration, or repair of a building . . . shall have a lien upon the building . . . to secure the payment of the debt due to him." (emphasis 2 We note Kitchen Planners argues the circuit court should not have made decisions concerning credibility when, in denying her motion to reconsider, the court stated Comose's affidavit "was not credible as it was a self-serving statement" and contradicted all other evidence, including Comose's deposition. Though we note witness credibility is not a proper consideration in deciding a motion for summary judgment, given our standard of review on appeal, we need not consider this argument. See David, 367 S.C. at 247 , 626 S.E.2d at 3 ("When reviewing an order granting summary judgment, the appellate court applies the same standard as the trial court."); Gecy, 422 S.C. at 516 , 812 S.E.2d at 754 ("A court considering summary judgment neither makes factual determinations nor considers the merits of competing testimony . . . ." (quoting M&M Grp., Inc., 379 S.C. at 473, 666 S.E.2d at 264 )). 3 Kitchen Planners asserts Comose's hourly rate was $125 per hour. However, this figure does not appear in the record. Further, the record contains no evidence as to the number of hours Kitchen Planners spent on the project. added)); 22 S.C. Jur. Mechanics' Liens § 14 (noting the materials furnished must "be incorporated into the structure or become fixtures"). In their answer, the Friedmans asserted the cabinets were never installed. In its responsive pleading, Kitchen Planners admitted those allegations, and Comose acknowledged the cabinets were not installed. Although Kitchen Planners asserts that because the Friedmans refused to allow the cabinets to be installed they should be estopped from avoiding the lien on this basis, it raises this argument for the first time on appeal. See Herron, 395 S.C. at 465 , 719 S.E.2d at 642 ("It is 'axiomatic that an issue cannot be raised for the first time on appeal.'" (quoting Wilder Corp., 330 S.C. at 76 , 497 S.E.2d at 733)). Further, the Viggiano estimate does not create a genuine issue of material fact because the statement "[a]ll useable hardware and drawers from the existing Crystal cabinets will be reflected as a credit in final price" is not probative of whether any such items were actually installed. Based on the foregoing, we find the only reasonable inference that can be drawn from the pleadings and evidence is that the materials were never installed in the Friedmans' home. See Hansson, 374 S.C. at 354-55 , 650 S.E.2d at 70 ("Summary judgment is appropriate when 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" (quoting Rule 56(c), SCRCP)). Accordingly, we find there was no genuine issue of material fact as to whether the materials were installed in the Friedmans' home. 3. Overhead and Profit Kitchen Planners contends the circuit court erred by concluding it claimed more than it was entitled to under the lien in violation of section 29-5-100. See § 29-5-100 (providing an "inaccuracy . . . in stating the amount due for labor or materials shall invalidate the proceedings[ if] it appear[s] that the person filing the certificate has wil[l]fully and knowingly claimed more than is his due"); see also Zepsa Constr. Inc., 357 S.C. 32 , 591 S.E.2d 29 (holding overhead and profit are recoverable only "in the limited situation where the terms of overhead and profit are agreed upon by the parties and are subsequently embodied within a contract"). Because we have concluded Kitchen Planners failed to satisfy the statutory requirements to establish the existence of a valid lien, we need not address this issue. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598 , 613, 518 S.E.2d 591 , 598 (1999) (stating an appellate court need not address remaining issues when its determination of a prior issue is dispositive). For the foregoing reasons, we find there was no genuine issue of material fact as to Kitchen Planners' claim for a mechanic's lien and foreclosure. Thus, we find the circuit court did not err by granting summary judgment in favor of the Friedmans. II. Motion to Strike Kitchen Planners argues the Friedmans failed to serve Mr. Friedman's affidavit with their motion to dismiss and therefore the circuit court erred by denying its motion to strike the affidavit as untimely pursuant to Rule 6(d), SCRCP. Additionally, it contends the circuit court erred by allowing the Friedmans to convert a motion to dismiss into a motion for summary judgment. We disagree. First, we find unpreserved Kitchen Planners' argument the circuit court improperly treated the motion to dismiss as a motion for summary judgment because it advances this argument for the first time on appeal. See Herron, 395 S.C. at 465 , 719 S.E.2d at 642 ("It is 'axiomatic that an issue cannot be raised for the first time on appeal.'" (quoting Wilder Corp., 330 S.C. at 76 , 497 S.E.2d at 733)). Regardless, even assuming the argument is preserved, we find the circuit court did not err by treating the motion as one for summary judgment. Rule 12(b), SCRCP, provides: If, on a motion . . . to dismiss for failure of the pleading to state facts sufficient to constitute a cause of action, matters outside the pleading are presented to and not excluded by the [c]ourt, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. (emphasis added); see also Rule 6(d), SCRCP ("A written motion . . . shall be served not later than ten days before the time specified for the hearing . . . . When a motion is to be supported by affidavit, the affidavit shall be served with the motion . . . ."); Rule 56(b), SCRCP ("A party against whom a claim, counterclaim, or cross-claim is asserted . . . may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof." (emphases added)). When the court treats a motion to dismiss as a motion for summary judgment, the "parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." See Rule 12(b), SCRCP. Here, although the Friedman's motion was titled "motion to dismiss," the body of the motion referenced only Rule 56 and did not reference Rule 12(b)(6). Therefore, we find the reference to Rule 56 in the body of motion was sufficient to place Kitchen Planners on notice that the Friedmans intended to proceed with a motion for summary judgment. Kitchen Planners did not argue it had an insufficient opportunity to present evidence in opposition to the Friedmans' motion, and in fact it did present evidence in opposition. Accordingly, even assuming the issue is preserved, we find the circuit court did not err by treating the motion as a motion for summary judgment. Further, we find the circuit court did not abuse its discretion by refusing to strike Mr. Friedman's affidavit. See Peterson v. Nat'l R.R. Passenger Corp., 365 S.C. 391 , 399, 618 S.E.2d 903 , 907 (2005) ("The admission of evidence is within the sound discretion of the trial judge, and absent a clear abuse of discretion amounting to an error of law, the trial court's ruling will not be disturbed on appeal."). Here, the Friedmans filed their motion for summary judgment on January 17, 2017, and the court heard the motion on April 25, 2017. Although they filed their memorandum and exhibits on April 20, 2017, the Friedmans served Kitchen Planners with Mr. Friedman's affidavit on April 13, 2017—more than ten days in advance of the hearing. See Rule 6(d), SCRCP. Kitchen Planners did not argue it had insufficient time to respond to the affidavit; in fact, it submitted an opposing affidavit, which the circuit court accepted. Moreover, as we stated, Kitchen Planners did not object to the circuit court treating the motion as one for summary judgment. Based on the foregoing, we find the circuit court did not abuse its discretion by refusing to exclude the affidavit. III. Attorney's Fees Kitchen Planners argues the circuit court erred by awarding attorney's fees because the Friedmans did not properly prove they were entitled to such fees. We disagree. A party defending against a mechanic's lien may recover a reasonable attorney's fee in defending against the lien. See § 29-5-20(a) ("If the party defending against the lien prevails, the defending party must be awarded . . . a reasonable attorney's fee as determined by the court. The fee and the court costs may not exceed the amount of the lien." (emphasis added)). Because we concluded the Friedmans were entitled to summary judgment, we find the circuit court did not err by concluding they were entitled to reasonable attorney's fees as the prevailing party. See §§ 29-5-10 to -20; see also Jackson v. Speed, 326 S.C. 289 , 308, 486 S.E.2d 750 , 760 (1997) (providing that when determining a reasonable attorney's fee, courts should consider the following: "(1) the nature, extent, and difficulty of the case; (2) the time necessarily devoted to the case; (3) professional standing of counsel; (4) contingency of compensation; (5) beneficial results obtained; and (6) customary legal fees for similar services")). Here, the amount of the lien was $16,594.68, and the Friedmans requested $16,594.68 in attorney's fees in their attorney's fee affidavit, which they filed and served several days prior to the summary judgment hearing. The circuit court granted the request and found the fees listed in the affidavit met "the factors necessary to determine reasonable attorney's fees as set out in Rule 407, [SCACR], and Jackson v. Speed." Although we acknowledge the circuit court did not analyze these factors, Kitchen Planners challenges only the sufficiency and contents of the fee affidavit rather than the circuit court's finding as to the reasonableness of the fees. Kitchen Planners argues the fee affidavit failed to itemize the 58.6 attorney hours claimed and it was "difficult to conceive how an attorney could expend almost 60 hours in this case." However, Kitchen Planners failed to challenge the Friedmans' submission of the fee affidavit during the summary judgment hearing and challenged the contents of the fee affidavit for the first time in its Rule 59(e), SCRCP, motion. Therefore, we find this argument unpreserved for our review. See Johnson v. Sonoco Prods. Co., 381 S.C. 172 , 177, 672 S.E.2d 567 , 570 (2009) ("An issue may not be raised for the first time in a motion to reconsider."). Accordingly, we find the circuit court did not err by awarding $16,594.68 in attorney's fees. CONCLUSION We find Kitchen Planners failed to serve and file its mechanic's lien within ninety days of the last date it supplied materials or labor and no evidence showed the materials were actually used in the home. Therefore, we affirm the circuit court's order granting summary judgment in favor of the Friedmans pursuant to sections 29-5-10 and 29-5-90. Further, we find the circuit court did not err by treating the motion as a motion for summary judgment or by refusing to strike Mr. Friedman's affidavit. Finally, we find the circuit court did not err by awarding attorney's fees to the Friedmans. For the foregoing reasons, the ruling of the circuit court is AFFIRMED. KONDUROS and HILL, JJ., concur.

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18-1439 Velasquez Ramirez v. Barr BIA A095 968 898 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 “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 2nd day of December, two thousand twenty. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Chief Judge, 9 REENA RAGGI, 10 JOSEPH F. BIANCO, 11 Circuit Judges. 12 _____________________________________ 13 14 PEDRO VELASQUEZ RAMIREZ, 15 Petitioner, 16 17 v. 18-1439 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Jose Perez, Esq., Syracuse, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 27 General; Leslie McKay, Senior 28 Litigation Counsel; Terri J. 29 Scadron, Assistant Director,  1 Office of Immigration Litigation, 2 United States Department of 3 Justice, Washington, DC. 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Petitioner Pedro Velasquez Ramirez, a native and citizen 9 of Guatemala, seeks review of an April 10, 2018, decision of 10 the BIA denying his motion for reconsideration. In re 11 Velasquez Ramirez, No. A 095 968 898 (B.I.A. Apr. 10, 2018). 12 We assume the parties’ familiarity with the underlying facts 13 and procedural history in this case. 14 We review the BIA’s denial of a motion to reconsider for 15 abuse of discretion. Jin Ming Liu v. Gonzales, 439 F.3d 109 , 16 111 (2d Cir. 2006). “An abuse of discretion may be found 17 where the BIA’s decision provides no rational explanation, 18 inexplicably departs from established policies, is devoid of 19 any reasoning, or contains only summary or conclusory 20 statements; that is to say, where the Board has acted in an 21 arbitrary or capricious manner.” Id. (internal quotation 22 marks omitted). 23 Velasquez Ramirez’s argument that the BIA erred in 2  1 deciding his appeal without properly serving a briefing 2 notice and considering the arguments he later raised in his 3 late-filed brief is without merit. The agency reasonably 4 concluded that the record showed the briefing notice was 5 properly mailed to counsel’s address of record in May 2017. 6 Where, as here, an alien had notice of the proceedings, the 7 agency does not abuse its discretion in denying a motion 8 predicated on nonreceipt of a subsequent notice if the agency 9 properly served it, regardless of the whether the alien 10 actually received it. Cf. Ping Chen v. U.S. Att’y Gen., 502 11 F.3d 73 , 76–77 (2d Cir. 2007) (agency did not abuse its 12 discretion in denying a motion to reopen and reissue an order 13 that the petitioner did not timely appeal because, “[o]nce 14 the BIA has performed its duty of serving the order, the time 15 for appeal and motions to reopen begins to run, even if the 16 order miscarries in the mail or the alien does not receive it 17 for some other reason that is not the BIA’s fault”). Counsel 18 asserts that he did not receive the scheduling notice, and 19 that he attempted to learn the deadline by leaving two phone 20 messages with the BIA’s clerk’s office after the notice 21 issued. This may be evidence that the scheduling notice was 3  1 not properly mailed, but it is circumstantial, and the agency 2 “may reasonably accord less weight to [evidence] of non- 3 receipt than to its own records establishing that the [notice] 4 was in fact mailed.” Ping Chen, 502 F.3d at 77 . 5 Because Velasquez Ramirez only timely petitioned for 6 review of the BIA’s April 2018 decision denying 7 reconsideration, our review is limited to that decision, and 8 we generally may not consider the agency’s underlying 9 decisions denying a continuance and denying Velasquez 10 Ramirez’s application for asylum, withholding of removal, and 11 protection under the Convention Against Torture (“CAT”). See 12 Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83 , 89–90 (2d 13 Cir. 2001) (holding that “we are precluded from passing on 14 the merits of the underlying . . . proceedings” when reviewing 15 the denial of reconsideration). To the extent that in 16 denying reconsideration, the BIA restated that there was no 17 error in the IJ’s rulings, we find no abuse of discretion 18 because Velasquez Ramirez’s challenges to the IJ’s rulings 19 lack merit. 20 The IJ has substantial discretion in granting and denying 21 continuances, and Velasquez Ramirez’s counsel did not 4  1 establish that she could not have prepared for the merits 2 hearing. See 8 C.F.R. § 1003.29; Matter of Sibrun, 18 I. & 3 N. Dec. 354, 356 (BIA 1983) (holding that a motion for a 4 continuance based on lack of preparation must be supported by 5 “a reasonable showing that the lack of preparation occurred 6 despite a good faith effort to be ready to proceed”). As to 7 asylum, withholding of removal, and CAT relief, Velasquez 8 Ramirez did not show that he had suffered past harm rising to 9 the level of persecution or demonstrate an objectively 10 reasonable fear of future harm based on a single encounter 11 with a man who asked him to transport drugs. Even construing 12 his testimony to assert that he had been threatened, a single 13 unfulfilled threat does not constitute past persecution, see 14 Gui Ci Pan v. U.S. Att’y General, 449 F.3d 408 , 412–13 (2d 15 Cir. 2006), and his fear of future harm was speculative 16 because he testified that he did not tell his putative abuser 17 anything about his identity or where he lived, there was no 18 evidence of any further attempts to contact him or his family 19 after this encounter, and he did not know of anyone else in 20 his town who had been hurt by drug traffickers, see Jian Xing 21 Huang v. U.S. INS, 421 F.3d 125 , 129 (2d Cir. 2005) (“In the 5  1 absence of solid support in the record . . . [an applicant’s] 2 fear is speculative at best.”). Because all of his claims 3 rested on the same factual predicate and he failed to meet 4 the burden for asylum, he “necessarily” failed to meet the 5 more demanding burden for withholding of removal and CAT 6 relief. Lecaj v. Holder, 616 F.3d 111 , 119 (2d Cir. 2010). 7 For the foregoing reasons, the petition for review is 8 DENIED. All pending motions and applications are DENIED and 9 stays VACATED. 10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, 12 Clerk of Court 6

2020-12-02 16:00:13.710154+00

http://www.ca2.uscourts.gov/decisions/isysquery/885328ea-a01a-40a2-91b3-64a0341e4251/8/doc/19-757_so.pdf

19-757-cr United States v. Owens 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 “SUMMARY 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 2nd day of December, two thousand twenty. Present: JOHN M. WALKER, JR., ROBERT A. KATZMANN, JOSEPH F. BIANCO, Circuit Judges. _____________________________________ UNITED STATES OF AMERICA, Appellee, v. No. 19-757-cr SEVEN L. OWENS, Defendant-Appellant. _____________________________________ For Appellee: Anthony E. Kaplan, Marc H. Silverman, Assistant United States Attorneys, for John H. Durham, United States Attorney for the District of Connecticut, New Haven, CT. For Defendant-Appellant: Paul F. Thomas, Duffy Law, LLC, New Haven, CT. 1  Appeal from a judgment of the United States District Court for the District of Connecticut (Hall, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Defendant-Appellant Seven L. Owens appeals from a judgment entered March 22, 2019 by the United States District Court for the District of Connecticut (Hall, J.) sentencing Owens to 25 years’ imprisonment, the statutory maximum, following his guilty plea to one count of carjacking in violation of 18 U.S.C. § 2119(2). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. Owens’s sole contention on appeal is that it was substantively unreasonable for the district court to impose the maximum legal sentence and that he should have been sentenced within the Sentencing Guidelines range of 151 to 188 months. “A sentence is substantively unreasonable if it cannot be located within the range of permissible decisions.” United States v. Jenkins, 854 F.3d 181 , 187 (2d Cir. 2017). “Our review for substantive unreasonableness is particularly deferential,” and “[w]e will identify as substantively unreasonable only those sentences that are so shockingly high, shockingly low, or otherwise unsupportable as a matter of law that allowing them to stand would damage the administration of justice.” United States v. Singh, 877 F.3d 107 , 115 (2d Cir. 2017). 1 We cannot conclude that imposition of the maximum sentence, although well above the applicable Guidelines range, was an abuse of the district court’s considerable discretion. In pleading guilty, Owens admitted to abducting a woman, threatening to shoot her, and repeatedly 1 Unless otherwise indicated, case quotations omit all internal quotation marks, footnotes, alterations, and citations. 2 raping her in the presence of her infant child. The district court reasonably concluded that a long sentence would be necessary “to reflect the seriousness of the offense.” 18 U.S.C. § 3553(a)(2)(A). The district court also considered Owens’s significant history of prior convictions and disciplinary infractions. Finally, the court acknowledged certain mitigating factors, including Owens’s difficult childhood and his substance abuse problems. Nonetheless, the court concluded that a sentence within the Guidelines range would not adequately reflect the gravity of Owens’s offense. These factors provide adequate justification for the district court’s sentence. Owens argues that the district court gave insufficient weight to the fact that he is subject to a concurrent 45-year state court sentence based on convictions of Connecticut offenses arising out of the same conduct that underlies his federal conviction. Because he will be incarcerated past the expiration of even the maximum federal sentence that could be imposed, Owens argues that an above-Guidelines sentence was “greater than necessary” under 18 U.S.C. § 3553(a) to achieve the goals of sentencing. Owens also argues that it would aid his rehabilitation to serve a greater proportion of his total sentence in Connecticut state prison because he could more easily receive visits from family members. We do not doubt that a district court ought to consider any parallel sentences to which the defendant may be subject for the same conduct in crafting an appropriate federal sentence. The district court here fulfilled that obligation, but permissibly concluded that the existence of the state sentence was outweighed by the need for the federal sentence to reflect the seriousness of Owens’s offense. “The weight to be afforded any sentencing factor is a matter firmly committed to the discretion of the sentencing judge and is beyond our review, as long as the sentence ultimately imposed is reasonable.” United States v. Bleau, 930 F.3d 35 , 42 (2d Cir. 2019) (per curiam). Moreover, the fact that Owens’s state 3 sentence is concurrent to any federal sentence means that the length of the sentence imposed here will not increase his total term of incarceration. Considering the record as a whole, we cannot say that the district court abused its discretion. Finally, Owens argues that the factors relied upon by the district court in imposing its above-Guidelines sentence were already captured by the various enhancements that applied to his Guidelines range. The district court acted within its discretion, however, by concluding that these enhancements did not fully reflect the gravity of the offense conduct. We have observed that “some Guidelines enhancements and reductions apply without modulation to a wide range of conduct,” such that “a district court may find that . . . there is a wide variety of culpability amongst defendants” even where the same enhancements apply. United States v. Cavera, 550 F.3d 180 , 192 (2d Cir. 2008) (en banc). For the foregoing reasons, we conclude that Owens’s sentence is not so “shockingly high,” Singh, 877 F.3d at 115 , as to be substantively unreasonable. Accordingly, the judgment of the district court is AFFIRMED. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 4

2020-12-02 16:02:48.795804+00

https://www.3dca.flcourts.org/pre_opinion_content_download/692465

Third District Court of Appeal State of Florida Opinion filed December 2, 2020. ________________ Nos. 3D20-1261 & 3D20-1276 Lower Tribunal No. 16-9652 ________________ Frank Jerome Evans, Appellant, vs. The State of Florida, Appellee. Appeals under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Teresa Mary Pooler, and Alberto Milian, Judges. Frank Jerome Evans, in proper person. Ashley Moody, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee. Before SCALES, HENDON, and MILLER, JJ. MILLER, J. UPON CONFESSION OF ERROR  After his conviction and sentence for aggravated battery became final, appellant, Frank Jerome Evans, filed a motion for postconviction relief alleging a myriad of claims, including ineffective assistance of trial counsel. See Evans v. State, 255 So. 3d 308 (Fla. 3d DCA 2018); Fla. R. Crim. P. 3.850. While the motion remained pending, Evans timely sought to amend, asserting two new claims. See Fla. R. Crim. P. 3.850(e) (“A motion may . . . be amended at any time prior to either the entry of an order disposing of the motion or the entry of an order pursuant to subdivision (f)(5) or directing that an answer to the motion be filed pursuant to (f)(6), whichever occurs first.”). Citing facial insufficiency, the court denied the original motion, along with the motion for leave to amend and a subsequent motion for rehearing, by way of separate orders. Upon the State’s proper and commendable confession of error, along with our own independent review of the record, we discern error in the failure below to adhere to “the procedure outlined in Spera v. State, 971 So. 2d 754 (Fla. 2007) when determining that an initial motion for post-conviction relief is legally insufficient.” Juarez v. State, 215 So. 3d 89 , 90 (Fla. 3d DCA 2016). Under Florida Rule of Criminal Procedure 3.850(f)(2), “[i]f the motion is insufficient on its face, and the motion is timely filed under this rule, the court shall enter a nonfinal, nonappealable order allowing the defendant [sixty] days to amend the motion.” 2  Here, the summary denial of relief, without granting leave to amend, constituted an abuse of discretion. See Spera, 971 So. 2d at 761 (“[W]hen a defendant’s initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule’s or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion.”). Accordingly, we reverse and remand for further proceedings. Reversed and remanded. 3

2020-01-17 22:01:49.981732+00

Aeundell

*1321OPINION. Aeundell : The contention of the petitioners, briefly stated, is that by virtue of the antenuptial agreement Emma J. Hathaway acquired a right to participate in the net income of the partnership to the extent of the amount they agreed to pay her, and they are legally bound to make the payments provided for by the agreements before any partnership profits accrue to them. In the case of Sam H. Harris, 11 B. T. A. 871, the taxpayer, a member of a partnership, purported to assign a part of his interest in the partnership, and in filing his income-tax return he. did not include in income the amount of partnership earnings which he claimed represented his assignee’s share. We held, on authority of a number of cases, that the assignee acquired no interest in either the partnership property or in the profits of the partnership as such; that the utmost the assignee acquired was a right to demand of the assignor an accounting for a portion of Ms share of the partnership profits, and that such right was founded “ upon the contract, not in re.” Here the contract upon which petitioners rely does not purport to assign even as much as did the contract in the Harris case. All that the petitioners bound themselves to do was to pay to the elder Hathaway’s widow a sum certain “ out of the income of the firm.” They did not contract to admit her to the partnership or to assign to her any part of or interest in the partnership. J. M. Hutchinson, 11 B. T. A. 789, cited by petitioners, was decided upon the theory that the persons to whom certain monthly payments were to be made by the partners “ had an interest in the business.” There, the partners inherited the business under the will of their father and the will imposed upon them the obligation of making the payments involved. Here, the petitioners had their partnership interest at the time they agreed to pay over a part of the income and it is not shown that their interests were changed upon the death of the father, except that they and the other children were vested remain-*1322dermen with respect to the father’s interest in the partnership. Certainly their respective interests were not diminished by either the contract they endorsed or by the elder Hathaway’s will; hence, their distributive portions of partnership profits were not decreased. Whatever part of the partnership profits ultimately came to the widow, came not from the partnership, for she had no interest therein, but from the partners. Rockefellow v. Miller, 107 N. Y. 507; 14 N. E. 433. While Emma J. Hathaway, under the antenuptial agreement, may have acquired an enforceable claim against the petitioners in their individual capacity, a question we need not decide, it is clear that the agreement did not give her any enforceable legal right against the partnership or to any of its profits. The payments made in the taxable years were not, in our opinion, ordinary and necessary business expenses of the partnership. Julian F. Hamerslag, 15 B. T. A. 96. See also Willard C. Hill, 14 B. T. A. 572. If the antenuptial agreement, by reason of all the partners having signed it, be regarded as one having for its purpose the purchase of Mrs. Hathaway’s dower rights in the elder Hathaway’s interest in the partnership, then the payments made by petitioners must be considered to be capital expenditures. The situation is analogous to the purchase of a deceased partner’s interest by the surviving partners out of partnership income, which we have held in Willard C. Hill, supra, does not serve to reduce the distributive shares of the partners. There being no evidence of any kind before us on the additional issue raised by Alton H. Hathaway, the action of the respondent in declining to allow him a deduction for the cost of worthless stocks is sustained. Judgment will he entered for the respondent.

2020-01-17 22:01:50.132165+00

Morris

*1338OPINION. MoRRis: Briefly stated, the sole question remaining for consideration after all others have been stipulated and agreed to by the parties, is whether certain profits are taxable to and certain losses deductible by the estate of William H. Hotchkiss, or whether said profits are taxable to and the losses deductible by the individual beneficiaries. The position taken by the petitioners is that the profits should not have been taxed to the estate, but to each of the several beneficiaries, and that the losses should not be attributed to the estate as a taxable entity but should be apportioned among said beneficiaries. Section 219 of the Revenue Act of 1921, in so far as applicable here, provides: (a) That the tax imposed by sections 210 and 211 shall apply to the income of estates or of any kind of property held in trust, including— (1) Income received by estates of deceased persons during the period of administration or settlement of the estate; (2) Income accumulated in trust for the benefit of unborn or unascertained persons or persons with contingent interests: *1339(3) Income held for future distribution under the terms of the will or trust; and (4) Income which is to be distributed to the beneficiaries periodically, whether or not at regular intervals, and the income collected by a guardian of an infant to be held or distributed as the court may direct. (b) The fiduciary shall be responsible for making the return of income for the estate or trust for which he acts. The net income of the estate or trust shall be computed in the same manner and on the same basis as provided in section 212, except that (in lieu of the deduction authorized by paragraph (11) of subdivision (a) of section 214) there shall also be allowed as a deduction, without limitation, any part of the gross income which, pursuant to the terms of the will or deed creating the trust, is during the taxable year paid or permanently set aside for the purposes and in the manner specified in paragraph (11) of subdivision (a) of section 214. * * * (c) In cases under paragraph (1), (2), or (3) of subdivision (a) or in any other case within subdivision (a) of this section except paragraph (4) thereof the tax shall be imposed upon the net income of the estate or trust and shall be paid by the fiduciary, except that in determining the net income of the estate of any deceased person during the period of administration or settlement there may be deducted the amount of any income properly paid or credited to any legatee, heir, or other beneficiary. In such cases the estate or trust shall, for the purpose of the normal tax, be allowed the same credits ¿s are allowed to single persons under section 216. (d) In cases under paragraph (4) of subdivision (a) and in the case of any income of an estate during the period of administration or settlement permitted by subdivision (c) to be deducted from the net income upon which tax is to be paid by the fiduciary, the tax shall not be paid by the fiduciary, but there shall be included in computing the net income of each beneficiary that part of the income of the estate or trust for its taxable year which, pursuant to the instrument or order' governing the distribution, is distributable to such beneficiary, whether distributed or not * * ⅜. The will, after providing for the payment of all expenses connected with the administration of the estate and devising a certain dwelling house and automobiles owned by the testator at the time of his death to the widow of the testator, directed the executors to “ divide ” the residue of the estate into 18 parts — 6 to Mary B. Hotch-kiss, 4 to Eleanor H. Potter, 4 to Margaret H. Streit, 2 to Roderick Potter, or to his children in the event that he predeceased the testator, and 2 to Raymond E. Streit, or, in the event he predeceased the testator, then to the children of said Streit. It is clear that the estate here is not governed by subsections (a) (2) and (8) of section 219, supra. The respondent contends that because the will of Hotchkiss empowered the executors to hold existing investments and manage the estate as he, the testator, might have if still alive, and because the petitioners and the respondent have, as he states, treated the income of the estate as distributable periodically, although not at regular intervals, the case falls within subsection (a) (4), supra, that is, that all the income is taxable to the *1340beneficiaries. We gan not agree with this contention. It is true that the instrument creating the estate gave the executors almost unlimited powers and discretion in the management of the estate properties, but there is no direction in the will of the testator for the distribution of income, either periodically or otherwise. The testator’s express direction to the executors was that the estate be divided into 18 stated parts, and we construe the word “ hold ” used by the testator, which the respondent stresses in his argument, to mean during the time necessary to properly conduct the administration and settlement of the estate. It will be noted that the only controversy in connection with income items arises over the sale by the estate in 1922 and 1923 of certain securities. The proposed deficiencies against the estate for those years are based upon those transactions. In view of that fact we are unable to understand the above argument of the respondent and the concluding clause of his brief “ that the distributees should be required to include in their incomes for 1922 and 1923 the gains on sales of securities, because distributable to the beneficiaries under the will.” We agree, however, with the respondent’s action in taxing to the estate the gains derived by it upon the sale of securities. Marion Shainwald Sevier et al., 14 B. T. A. 709. We are also of the opinion, notwithstanding attempted distinctions by counsel for the petitioners, that the loss on the sale of securities is governed by Marion Shainwald Sevier, supra, and other cases therein cited, and that said loss is not allowable to the beneficiaries. In that case we said: Petitioner contends that - she has the right to deduct from her gross income 27 per cent of the capital loss of the estate. It is clear that section 219 imposed a tax upon an estate in the process of administration as a distinct taxable entity, separate and apart from its beneficiaries, and it is further clear that the estate had the right to take such capital loss as a deduction. So far as the deductibility of capital losses is concerned, we can see no distinction with respect to income taxation between an estate in the process of administration and a trust. Both are treated as taxable entities by section 219. Further, the capital loss of the estate did not arise out of any trade oi' business carried on by petitioner nor in any transaction entered into by her for profit. (Section 214 (a) (1) and (4). This contention must be decided adversely to the petitioner on the authority of Walter S. Gurnee et al., Executors, 13 B. T. A. 262, Arthur H. Fleming, 6 B. T. A. 900; O. Ben Haley, 6 B. T. A. 782; Baltzell v. Mitchell, supra; and Whitcomb v. Blair, 25 Fed. (2d) 528. See also in this connection, F. W. Matthiessen, Jr., 2 B. T. A. 921 and Matthiessen v. United States, 65 Ct. Cls. 484 (writ of certiorari denied by the Supreme Court April 8, 1928), Judgment will be entered under Bule 50.

2020-12-02 16:02:50.704296+00

https://www.3dca.flcourts.org/pre_opinion_content_download/692460

Third District Court of Appeal State of Florida Opinion filed December 2, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-2038 Lower Tribunal No. 15-6256 ________________ BJ's Wholesale Club, Inc., etc., Appellant, vs. Laura Bugliaro, et al., Appellees. An Appeal from a non-final order from the Circuit Court for Miami-Dade County, William Thomas, Judge. Foley & Lardner LLP, Kevin A. Reck and Christina M. Kennedy (Orlando); Foley & Lardner LLP, and James A. McKee (Tallahassee); Foley & Lardner LLP, and Angelica L. Novick, for appellant. Kluger, Kaplan, Silverman, Katzen and Levine, P.L., and Alan J. Kluger, Steve I. Silverman and Erin E. Bohannon; VM Díaz & Partners, LLC, and Victor M. Díaz, Jr., for appellees. Before EMAS, C.J., and GORDO and BOKOR, JJ. GORDO, J.  BJ’s Wholesale Club appeals from a trial court order denying its motion to compel arbitration in this class action for injunctive and declaratory relief. We have jurisdiction to review the non-final order as one determining the entitlement of a party to arbitration. See Fla. R. App. P. 9.130(a)(3)(C)(iv). We conclude the trial court lacked jurisdiction to adjudicate the parties’ arbitration rights while the prior motion was pending on appeal. We therefore quash the portion of the order making factual findings and legal conclusions beyond the scope of the court’s jurisdiction.1 FACTS & PROCEDURAL HISTORY On March 17, 2015, Laura Bugliaro filed the underlying class action complaint. The fourth amended complaint—the operative complaint in this appeal—alleges that BJ’s engaged in deceptive and unfair trade practices by improperly collecting from its members a charge denominated as a “sales tax” on the full, undiscounted price of products purchased with a discount, funded in part by BJ’s, at all of BJ’s thirty-one Florida locations. Bugliaro asserts that when members of BJ’s Wholesale Club’s thirty-one Florida stores use discounts, issued and funded in whole or part by BJ’s, to make in-store purchases, BJ’s still charges and purports to collect “sales tax” on the full price of the item, without application of the portion of the discount that is funded by BJ’s to reduce the sales price of the item. Bugliaro 1 We lack jurisdiction to, and therefore do not, review the portion of the order denying the motion to dismiss the fourth amended complaint. 2 seeks prospective injunctive relief pursuant to the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) and a judicial declaration interpreting the relevant statutory and regulatory rules. On September 9, 2016, Bugliaro moved for certification of a class on the injunctive relief claim. On May 24, 2017, the trial court certified a class and BJ’s appealed. This Court reversed the certification order finding the class was not ascertainable. BJ’s Wholesale Club, Inc. v. Bugliaro, 273 So. 3d 1119 , 1121 (Fla. 3d DCA 2019) (Bugliaro I). We further held the trial court lacked subject matter jurisdiction as to Count I for injunctive relief because Bugliaro failed to exhaust her administrative remedies. We specifically held: As to the trial court’s lack of subject matter jurisdiction, Bugliaro is not seeking purely injunctive relief, as she claims. Count I, upon which Bugliaro is proceeding for class certification, incorporates the first paragraph of the operative complaint in which Bugliaro seeks damages, including a tax refund. Because Count I includes a request for a refund, Bugliaro and any putative class members were required to exhaust their administrative remedies with the Department of Revenue pursuant to section 215.26, Florida Statutes (2016). Id. On September 5, 2017, while Bugliaro I was pending on appeal, the trial court entered an order denying BJ’s’ motion to compel arbitration of prospective putative class members finding that BJ’s waived its right to arbitration and that compelling arbitration would result in substantial prejudice to the plaintiffs. BJ’s appealed. On 3 October 10, 2019, this Court sua sponte dismissed the appeal as moot given its reversal of the class certification order in Bugliaro I. See BJ’s Wholesale Club, Inc. v. Bugliaro, 301 So. 3d 931 (Fla. 3d DCA 2019) (Bugliaro II). In response to the decision in Bugliaro I and while Bugliaro II was still pending on appeal, Bugliaro filed her fourth amended complaint removing any claims for a tax refund and re-defining the class. BJ’s moved to dismiss the fourth amended complaint and to compel arbitration individually as to Bugliaro. The trial court held a hearing and denied BJ’s’ motion to dismiss and to compel arbitration on September 24, 2019. In its order, the court found the holding in Bulgiaro I that the court lacked subject matter jurisdiction was limited to the claim involving money damages and rejected BJ’s’ claim that every prior order in the litigation was void. The court concluded that it lacked jurisdiction to reconsider the September 2017 arbitration order, which remained pending on appeal in Bugliaro II. The court, however, then proceeded to rule substantively that BJ’s waived its right to arbitration, that compelling arbitration would significantly prejudice the plaintiffs, and that BJ’s right to arbitration was not revived. BJ’s appeals. LEGAL ANALYSIS BJ’s misconstrues this Court’s Bugliaro I opinion in claiming that the trial court lacked subject matter jurisdiction over the entire case. This Court’s opinion regarding subject matter jurisdiction in Bugliaro I was limited to the claim over 4 which administrative remedies exist; it did not conclude the trial court lacked subject matter jurisdiction entirely. As such, the case was remanded for further proceedings consistent with this Court’s rulings regarding the failure to exhaust administrative remedies and the ascertainability of the class. The subsequent dismissal of Bugliaro II was based on this Court’s reversal of the class certification order in Bugliaro I, which rendered moot the appeal of BJ’s motion to compel arbitration of the class members because there was no longer a class. Recognizing that the trial court maintained subject matter jurisdiction over the action, we address the ruling on the motion to compel arbitration. In the order on appeal, the trial court appropriately concluded it lacked jurisdiction to reconsider its prior arbitration ruling as to the then-certified class because the matter was pending on appeal before this Court. See Fonseca v. Taverna Imports, Inc., 193 So. 3d 92 , 94 (Fla. 3d DCA 2016) (“[A] trial court is divested of jurisdiction upon the filing of a notice of appeal.”). Notwithstanding this jurisdictional impediment, the trial court went further, explicitly making rulings regarding BJ’s’ right to compel arbitration as to Bugliaro and the putative class members. We conclude the trial court lacked jurisdiction to determine BJ’s’ right to arbitration while that matter was pending on appeal. See Stoppa v. Sussco, Inc., 943 So. 2d 309 , 314 (Fla. 3d DCA 2006) (concluding the trial court was without jurisdiction to consider a non-final order while the subject of that 5 order was pending on appeal and that “[w]hether the trial court lacks jurisdiction depends . . . on the nature of the action being taken by the trial court in relation to the subject matter of the pending appeal.” (citing Bailey v. Bailey, 392 So. 2d 49 , 52 (Fla. 3d DCA 1981))); Schultz v. Schickedanz, 884 So. 2d 422 , 424 (Fla. 4th DCA 2004) (“[A] trial court is divested of jurisdiction upon notice of appeal except with regard to those matters which do not interfere with the power and authority of the appellate court or with the rights of a party to the appeal which are under consideration by the appellate court.” (citing Palma Sola Harbour Condo., Inc. v. Huber, 374 So. 2d 1135 , 1138 (Fla. 2d DCA 1979))). We quash the portion of the order addressing BJ’s’ entitlement to arbitration because the court lacked jurisdiction to consider the matter while Bugliaro II was pending and we remand with instructions to vacate all factual findings and legal conclusions adjudicating the substantive merits of the motion to compel arbitration. 6

2020-12-02 16:02:56.463877+00

https://edca.4dca.org/DCADocs\2020/2010/202010_DC03_12022020_101525_i.pdf

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT YERAL ANDALIA RODRIGUEZ, Petitioner, v. STATE OF FLORIDA, Respondent. No. 4D20-2010 [December 2, 2020] Petition for writ of certiorari to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Timothy L. Bailey, Judge; L.T. Case No. 20-6214CF10A. Michael Garcia Petit of the Law Office of Michael Garcia Petit, P.A., Miami Lakes, for petitioner. Ashley Moody, Attorney General, Tallahassee, and Melynda L. Melear, Senior Assistant Attorney General, West Palm Beach, for respondent. WARNER, J. Yeral Andalia Rodriguez – the defendant in a pending vehicular homicide case – petitions for certiorari review from orders allowing the State to subpoena defendant’s hospital and paramedic records from the date of the incident from which his charges arose. Because there was no reasonable founded suspicion that the records would contain information relevant to the pending charges or an ongoing criminal investigation, we grant the petition. On the date of the crash in October 2018, defendant was allegedly driving at a high rate of speed (approximately 78 mph) alongside another speeding vehicle. Defendant’s vehicle crossed over the concrete median into oncoming traffic. He struck two other vehicles resulting in the death of defendant’s seventeen-year-old passenger and serious bodily injury to the driver of one of the other vehicles. The crash report shows that paramedics transported defendant to the hospital for a non-life-threatening head injury. The report does not mention that defendant was under the influence of alcohol or drugs at the time or that he made any statements to medical personnel. A detective attempted to get a statement from defendant at the hospital about how the crash occurred, and he declined. The detective did not document any signs of impairment and did not ask defendant to submit to blood testing under section 316.1933, Florida Statutes (2018). Defendant, however, signed a consent to search his car. The search produced no evidence that defendant was under the influence of drugs or alcohol. The detective took statements from witnesses to the accident, and no one observed anything to lead them to believe that defendant was under the influence of alcohol or drugs. Two witnesses at the scene described defendant as “dazed” and in shock. Neither reported smelling any alcohol. The probable cause affidavit that the detective prepared in May 2020 did not allege that defendant was under the influence of drugs or alcohol and made no mention of any statements made by defendant as to how the accident happened. The affidavit found probable cause that defendant drove recklessly (78 mph in a 40-mph zone). In July 2020, the State filed an information charging defendant with vehicular homicide, reckless driving causing serious bodily injury, and four counts of reckless driving causing property damage. The information does not allege that defendant was under the influence of drugs or alcohol. The State served notice that it intended to subpoena defendant’s hospital and paramedic records, seeking to discover whether defendant had made any statements regarding the crash as well as to obtain the results of any blood and urine tests. Defendant objected. The State then filed its motion asking the court to allow the subpoenas to issue. The State alleged that the records were “relevant to the State’s investigation in this case to determine if the defendant made any statements to medical personnel as to how the crash occurred and what if anything happened just prior to the crash.” The State argued that it had met “the low burden of proving relevancy.” However, the subpoenas did not expressly ask for records containing defendant’s statements and sought all records – particularly, any records of drug/alcohol testing. At a hearing on the State’s motion, the State presented no evidence suggesting that defendant was impaired in any way or that he made any statements to medical personnel about how the crash happened. The court granted the motion, stating that, because defendant was operating 2 his vehicle in a reckless manner and allegedly made no attempt to stop before the crash, his blood and urine tests were relevant. Defendant timely filed this petition. The State concedes that a petition for writ of certiorari is available to seek review of an order allowing the State to subpoena a defendant’s protected medical records. See, e.g., Ussery v. State, 654 So. 2d 561 , 562 (Fla. 4th DCA 1995). As observed in Gomillion v. State, 267 So. 3d 502 , 506 (Fla. 2d DCA 2019), medical records are protected by the right of privacy in Article I, Section 23, of the Florida Constitution. Various statutes protect the confidentiality of medical records. See §§ 456.057(7); 395.3025(4); 401.30(4), Fla. Stat. (2018). Each of those statutes permits the release of such records where a court authorizes the issuance of a subpoena, but the State has a burden to show that there is a compelling state interest in the production of constitutionally-protected records. See Hunter v. State, 639 So. 2d 72 , 74 (Fla. 5th DCA 1994). For the State to obtain such records, it must first give notice to the patient. If the patient objects to disclosure, then the State must establish the relevancy of the records. Hunter, 639 So. 2d at 74 . Because the records are protected by a constitutional right to privacy, the State must show that there is a compelling state interest to produce the records. Gomillion, 267 So. 3d at 506; Guardado v. State, 61 So. 3d 1210 (Fla. 4th DCA 2011); see also Shaktman v. State, 553 So. 2d 148 , 152 (Fla. 1989) (involving law enforcement’s use of a pen register device on telephone lines and finding “a legitimate, ongoing criminal investigation satisfies the compelling state interest test when it demonstrates a clear connection between the illegal activity and the person whose privacy would be invaded.”). The State must demonstrate a reasonable founded suspicion that the medical records contain information relevant to an ongoing criminal investigation. State v. Johnson, 814 So. 2d 390 , 393 (Fla. 2002); Gomillion, 267 So. 3d at 507; State v. Rivers, 787 So. 2d 952 , 953 (Fla. 2d DCA 2001). In Gomillion, a case similar to this one, the defendant fled the scene of a vehicular accident involving serious injuries. He was charged with careless driving, leaving the scene of an accident, and driving with a suspended license. The State sought to subpoena toxicology and other medical records, and the defense objected. The trial court overruled the objection, authorizing the subpoena. As to the toxicology records, the trial court justified its order based upon the possible relevance of those records for impeachment should the defendant choose to testify. 267 So. 3d at 505. 3  The Second District granted the petition for certiorari and quashed this part of the order. It noted that the State did not present any evidence that there was an issue in an ongoing investigation for which the toxicology records were material. The State did not offer evidence that the records were relevant to any element of the pending charges or a defense to those charges. Id. at 507-08. The court also found that, with respect to impeachment, the State must present a reasonable theory to show that the toxicology records would produce relevant evidence. The State had failed to do so. Similarly, in the present case, we conclude that the State has not met its burden of demonstrating a reasonable founded suspicion that the medical records have any information relevant to the pending charges or any ongoing criminal investigation. Defendant was charged with vehicular homicide and reckless driving, not DUI. Neither the accident report, the search of defendant’s vehicle, nor the statements of any witness proved any reasonable suspicion that defendant was under the influence of alcohol or drugs. The court authorized the subpoenas on the grounds that, because the probable cause affidavit had sufficient evidence that defendant was operating his vehicle in a reckless manner – going almost twice the speed limit and making no attempt to slow down prior to impact, the blood and urine tests would be relevant to the question of carelessness. We disagree that every reckless driving incident creates a compelling state interest to obtain toxicology records. There must be some reasonable founded suspicion that alcohol or drugs were involved, such as someone smelling alcohol, drug or alcohol containers in the vehicle, or statements or evidence which might suggest drug use or alcohol intoxication. Here, there is nothing to suggest any alcohol or drug involvement. There is merely a bare suspicion, not a reasonable founded suspicion. As we said in Guardado, “the State’s theory, ‘a crash plus a death always makes medical blood relevant,’ is not the law.” 61 So. 3d at 1214 . The trial court departed from the essential requirements of the law by authorizing the subpoenas under these circumstances. Accordingly, the petition for writ of certiorari is granted, and the orders are quashed. Petition granted. DAMOORGIAN and KLINGENSMITH, JJ., concur. * * * 4 Not final until disposition of timely filed motion for rehearing. 5

2020-12-02 16:02:57.21346+00

https://edca.4dca.org/DCADocs/2019/3831/193831_DC05_12022020_100232_i.pdf

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT STATE OF FLORIDA, Appellant, v. LUCAS STEVENSON, Appellee. No. 4D19-3831 [December 2, 2020] Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Edward Harold Merrigan, Judge; L.T. Case No. 19-638 CF10A. Ashley Moody, Attorney General, Tallahassee, and Deborah Koenig, Assistant Attorney General, West Palm Beach, for appellant. Carlos A. Canet of Law Office of Carlos A. Canet, P.A., Fort Lauderdale, for appellee. CONNER, J. The State appeals the trial court’s order dismissing the felony information charging Lucas Stevenson (“the defendant”) with possession of Tetrahydrocannabinol (“THC”), with leave to refile the charge in county court as a misdemeanor. Because the State was unable to make a prima facie showing that the defendant committed a felony, we affirm the trial court. Background The defendant was charged with one count of possession of THC, contrary to sections 893.03(1)(c)190.a, Florida Statutes (2019) and 893.13(6)(a), Florida Statutes (2019), after being found in possession of three cartridges containing a liquid for vaping with an electronic cigarette. The defendant moved to dismiss the charge, arguing that because the total gross weight of the alleged THC was 14.04 grams, he was improperly charged in circuit court with a third degree felony when he should have been charged in county court with a first degree misdemeanor under section 893.13(6)(b), Florida Statutes (2019). Section 893.13(6)(b) proscribes as a misdemeanor possession of twenty grams or less of cannabis. § 893.13(6)(b), Fla. Stat. (2019). More specifically, the defendant argued that THC is a naturally occurring psychoactive chemical compound found in the cannabis plant and is also commercially produced as a synthetic compound. Because the Broward County Sheriff’s Office Crime Lab (“BSO Crime Lab”) was unable to analyze the vaping compound in a manner to determine whether the THC he possessed was synthetic or natural, he further argued that it was impossible to determine whether the charge is a felony or a misdemeanor, and therefore, applying the rule of lenity, the felony charge should be dismissed with leave for the State to re- file as a misdemeanor. At the hearing on the motion to dismiss, the defense called the forensic chemist from the BSO Crime Lab who conducted the analysis of the substance in the vaping cartridges. The chemist testified that THC is the active compound found in cannabis and the report of his results was entered into evidence. The chemist did a visual inspection of the substance, which was a liquid inside one of the cartridges, using a microscope and also used a gas chromatography mass spectrometry test to analyze the substance. The chemist testified he documented the results of his analysis as “tetrahydrocannabinols” in the plural form because he could not tell whether the source originated as THC or THCA, a similar compound. He testified that THC can be naturally accessed from the cannabis plant but can also be synthetically produced. The chemist testified multiple times that the THC compound he analyzed in this case could have come from the actual plant, but it could have also been synthetically manufactured in a laboratory, and that his analysis could not distinguish the two or determine the origin. When asked if synthetic THC has characteristics similar to natural THC, the chemist responded that “[t]hey would be identical,” not just similar, but “exact.” When asked on direct examination about marijuana resin, the following exchange occurred: Q. Can you tell if the compound you have identified if that comes from a compound manufacture, salt, derivative, mixture, or preparation of the plant or seeds of marijuana? Do you want me to repeat that again? A. No. I can only tell you what it is, not where it came from. 2 Q. Do you know what marijuana resin is? A. Yes. Q. What is marijuana resin? A. That is exactly what we call it, marijuana resin. Q. Do you know how that is created or how that is manufactured? A. The plant produces it. Q. Can you just scrape it off a plant or whatever? A. We have gotten preparations where they have scraped resins from the leaves. That is how they make things like hash or hash oil. Q. Do you know if the compound that you detected is a product of resin? A. Again, I can’t say where the product came from whether synthetic or natural. I can only tell you what it is. .... Q. I think you said a little while ago you don’t know what the chemical composition of the oil is? A. Right. We don’t investigate non-controlled substances. We only find what the controlled substances are, if any, and then report it. Q. I think the example I gave you, do they take vegetable oil and put THC in it? A. Vegetable oil, I don’t know if that is what they do as a base or substrate. But I think the question is, where does the THC come from? I can’t say whether it is natural or artificial. 3  Q. What I am trying to get at, do you know if they just take some vegetable oil and sprinkle it with THC? Do you know if that is what they do? A. The only thing I found in there as far as oils go would be Vitamin E. But they do have other peaks that I mentioned on the chromatogram that I don’t bother trying to match them up. On cross-examination of the chemist by the State, the following exchange occurred: Q. Let’s start from the beginning. When you inspected the sample provided to you, you said you inspected it for any plant material? A. Right. Q. Was any found? A. No, not under the microscope. I found liquid. Q. Just liquid. And no plant material there? A. Right. Q. Now, you described resin to be taken directly from the plant? A. It can. Q. Was it a liquid type kind of gooey? A. It was a very thick type of liquid, yes. Q. So very thick liquid. Would you call that a resinous abstract of the plant, if it was abstracted from the plant? A. If it was abstracted from the plant, yes. Q. It could be a resinous abstract. A. The term resin was referred to by being from a plant. 4  Q. And it would— A. Looking at the dictionary, it would be from a plant. Q. I’m sorry, could you repeat that? A. If you look at the dictionary definition of resin, it would have it referring to coming from a plant. Q. Is [sic] somebody were to remove this liquid resin from a plant and abstract it, you would categorize it as resinous abstract? A. I have referred to it in other lab reports as—in this case, I said it was a liquid. But for other times I would put down the word resin. Q. And this derived from the cannabis plant? A. As far as the resin go, it does produce cannabis resin, yes. Q. You said there is a street name for this resinous abstract using preparation, basically called hash? A. The old-fashion term would be called hash or hash oil. It depends on whether it is solid or liquid. Hash oils is more—actually it is kind of like an oil. The defendant argued at the close of the evidence that the State charged him with violating section 893.03(1)(c)190.a., governing “synthetic cannabinoids.” He further argued that the State could not remove the substance in the vaping cartridges from the definition of cannabis under section 893.02(3), Florida Statutes (2019), which includes “all parts of any plant of the genus Cannabis” and “every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds.” The defendant contended that because the substance in this case could not be removed from the definition of cannabis, the misdemeanor limitation for possession of twenty grams or less of cannabis was applicable, noting that all that was excluded from that misdemeanor limitation was resin, which was not shown to be present, based on the chemist’s testimony. Because it could not be clearly established that the misdemeanor exception did not apply to the substance, the defendant argued the matter should be 5 resolved in his favor by dismissing the felony charge and allowing the State to proceed with a misdemeanor charge. The State responded that whether the substance was synthetic or natural was irrelevant because the legislature made it clear that the misdemeanor applies to a “substance,” while section 893.03(1)(c)190.a applies to the “chemical isolation” of THC. It argued that the definition of cannabis was a broad stroke definition of a plant and everything thereunder, and that the legislature intended to isolate the families of compounds listed in section 893.03 from the definition of cannabis under sections 893.02 and 893.13. In the order granting the motion to dismiss, the trial court framed the issue before it as whether the THC found in the vaping cartridges was synthetic or natural, concluding that if synthetic, then the defendant was properly charged with a felony, but that if the substance was natural, then based on the amount found, he could only be charged with a misdemeanor. The trial court explained that “section 893.03(1)(c)(190)(a) identifies the felony level substance as ‘Synthetic Cannabinoids’” and that “[i]n reading the statute, the ordinary meaning of that statute is that the synthetic compound of cannabinoids is a felony level offense as determined by the Florida Legislature.” The trial court noted the chemist’s testimony that he could not identify if the substance was synthetic or natural, and the State’s failure to offer any evidence that the substance was of synthetic or natural origin. Therefore, the trial court reasoned, the State could not offer any evidence which would exclude the cannabis plant as the source of the THC and, as such, the State could not present a prima facie case that the defendant’s possession of THC was a felony, rather than a misdemeanor. The State gave notice of appeal of the final order dismissing the case with leave for the State to re-file as a misdemeanor. Appellate Analysis “The standard of review on a motion to dismiss is de novo because ‘[t]he purpose of a motion to dismiss is to allow a pretrial determination of the law of the case when the facts are not in dispute.’” State v. Smith, 67 So. 3d 409 , 411 (Fla. 4th DCA 2011) (alteration in original) (quoting State v. Pasko, 815 So. 2d 680 , 681 (Fla. 2d DCA 2002)). Additionally, on a motion to dismiss, the State must “‘only . . . show a prima facie case,’ and ‘is entitled to the most favorable construction of the evidence, and all inferences should be resolved against the defendant.’” Id. (quoting Pasko, 815 So. 2d at 681 ). “The motion to dismiss should be granted ‘only where 6 the most favorable construction to the state would not establish a prima facie case of guilt.’” Id. (quoting Pasko, 815 So. 2d at 681 ). On appeal, the State contends that the trial court misapprehended the facts and did not properly apply the constructs of statutory interpretation in granting dismissal. Its fundamental premise for reversal is that “the trial court . . . erred when it decided that possession of 14.04 grams of the [THC] substance, if it was found to be of natural origin, had to be a misdemeanor.” In the trial court, the State contended the misdemeanor exception to possession of cannabis under section 893.13(6)(b) did not apply to the “chemical isolation” of cannabis or THC. More specifically, the State argued as follows: State: It is the State’s position this definition is outlined. The definition of cannabis in 893.023 [sic] is the broad stroke of the definition of the plants and everything that can fall under. I believe the legislators intended to isolate these family of compounds in separating them and it [section 893.03] demonstrates that. That being said, regardless of the origin of this material, the chemist says he does not know where it came from and he only knows that this substance falls into this category specifically enumerated in the statute. So the State is not charging him with cannabis, we are charging him with possession of this molecule regardless of the source. The defense responded: “The problem the State has is that the molecule falls squarely within the generalized definition of cannabis.” On appeal, the State abandoned the terms “chemical isolation” and “molecule” in constructing its argument, and instead reframes its argument to contend that misdemeanor possession of cannabis applies only to plant material less than twenty grams, so long as the plant material is not resin. The information filed against the defendant alleged that: 7  [The defendant] did unlawfully have in his actual or constructive possession a controlled substance, to-wit: Tetrahydrocannabinols, the active ingredient in Cannabis Sativa L, commonly known as THC, contrary to F.S. 893.03(1)(c)190a. and F.S. 893.13(6)(a), (L3). Section 893.13(6)(a), Florida Statutes, provides: (6)(a) A person may not be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter. A person who violates this provision commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. § 893.13(6)(a), Fla. Stat. (2019) Section 893.02(4), Florida Statutes (2019), provides that ‘“[c]ontrolled substance’ means any substance named or described in Schedules I-V of s. 893.03.” Although the information references section 893.03(1)(c)190.a., Florida Statutes, in describing the crime charged, significantly section 893.03 does not contain any language defining criminal conduct. Instead, the very lengthy statute merely defines five different schedules of controlled substances by categories. The controlled substances in each schedule are described by chemical names, and most schedules describe the controlled substance to include “any material, compound, mixture, or preparation” containing the chemical, as well as “salts, isomers, . . . homologues, analogs, esters, etc.” of the chemical. Section 893.03(1)(c)190.a. defines the controlled substance the defendant was charged with possessing as follows: 190. Synthetic Cannabinoids. –Unless specifically excepted or unless listed in another schedule or contained within a pharmaceutical product approved by the United States Food and Drug Administration, any material, compound, mixture, or preparation that contains any quantity of a synthetic cannabinoid found to be in any of the following chemical class descriptions, or homologues, nitrogen-heterocyclic analogs, isomers (including optical, positional, or geometric), esters, ethers, salts, and salts of homologues, nitrogen-heterocyclic 8  analogs, isomers, esters, or ethers, whenever the existence of such homologues, nitrogen-heterocyclic analogs, isomers, esters, ethers, salts, and salts of isomers, esters, or ethers is possible within the specific chemical class or designation. Since nomenclature of these synthetically produced cannabinoids is not internationally standardized and may continually evolve, these structures or the compounds of these structures shall be included under this subparagraph, regardless of their specific numerical designation of atomic positions covered, if it can be determined through a recognized method of scientific testing or analysis that the substance contains properties that fit within one or more of the following categories: a. Tetrahydrocannabinols. –Any tetrahydrocannabinols naturally contained in a plant of the genus Cannabis, the synthetic equivalents of the substances contained in the plant or in the resinous extracts of the genus Cannabis, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity . . . . § 893.03(1)(c)190.a., Fla. Stat. (2019) (emphasis added). Pertinent to the analysis is the definition of cannabis found in section 893.02(3): (3) “Cannabis” means all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. The term does not include “marijuana,” as defined in s. 381.986, if manufactured, possessed, sold, purchased, delivered, distributed, or dispensed, in conformance with s. 381.986. The term does not include hemp as defined in s. 581.217 or industrial hemp as defined in s. 1004.4473. The term does not include a drug product described in s. 893.03(5)(d). § 893.02(3), Fla. Stat. (2019) (emphasis added). The defendant sought reduction of his charge to a misdemeanor by asserting that section 893.13(6)(b) applied to his case, since the controlled substance he was charged with possessing weighed only 14.04 grams. Section 893.13(6)(b) provides: 9  (b) If the [possession of controlled substance] offense is the possession of 20 grams or less of cannabis, as defined in this chapter, the person commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. As used in this subsection, the term “cannabis” does not include the resin extracted from the plants of the genus Cannabis, or any compound manufacture, salt, derivative, mixture, or preparation of such resin. § 893.13(6)(b), Fla. Stat. (2019) (emphasis added). The trial court correctly agreed with the defendant’s position that he should be charged with a misdemeanor unless the State was able to establish a prima facie showing that the defendant committed a felony by possessing the three vaping cartridges. A plain reading of the statutory language reflects that the misdemeanor exception does not apply to possession of resin or “any compound manufacture, salt, derivative, mixture, or preparation of such resin.” Id. (emphasis added). Rather, the misdemeanor exception applies to possession of twenty grams or less of “all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof . . . and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds,” except for the resin or derivatives of the resin. §§ 893.02(3), 893.13(6)(b), Fla. Stat. (2019). We do not agree with the State’s assertion that the source of the THC is irrelevant. If the source of the THC was a “compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds,” but not the resin of a cannabis plant or any compound manufacture, salt, derivative, mixture, or preparation of such resin, then the misdemeanor exception for prosecution would apply to the defendant’s possession, given the quantity possessed. Notably, the State never argued below that the THC substance in the cartridges came from cannabis resin or any compound manufacture, salt, derivative, mixture, or preparation of such resin. On appeal, the State contends that the witness testified that the substance here was either synthetically created or natural, but that if it was natural, then it was a resinous extract, such as would be excluded from the misdemeanor exception. However, we have examined the testimony of the chemist closely, and conclude that although he was questioned about cannabis resin, he never was directly asked and never directly testified that his analysis revealed the THC source in this case was cannabis resin. Instead, he repeatedly said he could not conclude whether the source of the THC 10 was natural or synthetic. The chemist consistently referred to the substance as a “liquid.” Although he agreed with the State that resins are “gooey,” he did not testify that the “liquid” in the cartridges was “gooey” or a resin. We conclude that the trial court correctly understood the defendant could be charged with a felony only if the State could make a prima facie showing that the source of the THC substance possessed by the defendant was either artificially produced, cannabis resin, or “any compound manufacture, salt, derivative, mixture, or preparation of such resin.” Because the State’s chemist was unable to make such a showing, and the State failed to proffer any further evidence, we affirm the trial court’s order of dismissal. Affirmed. GERBER and KLINGENSMITH, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing. 11

2020-12-02 16:02:57.899902+00

https://edca.4dca.org/DCADocs/2019/3590/193590_NOND_12022020_100040_i.pdf

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT STATE OF FLORIDA, Appellant, v. DOUGLAS DALEY, Appellee. No. 4D19-3590 [December 2, 2020] Nonfinal appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Marina Garcia Wood, Judge; L.T. Case No. 19- 1325 CF10A. Ashley Moody, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellant. Carey Haughwout, Public Defender, and Christine C. Geraghty, Assistant Public Defender, West Palm Beach, for appellee. ON APPELLEE’S MOTION FOR REHEARING PER CURIAM. Appellee’s motion for rehearing is denied. LEVINE, C.J., concurs. FORST, J., concurs specially with opinion. GROSS, J., dissents with opinion. FORST, J., specially concurring. I join in denying Appellee Douglas Daley’s motion for rehearing of the Court’s opinion that reversed the trial court’s order granting Daley’s motion to suppress. The motion for rehearing and the dissenting opinion mischaracterize the record, the trial court’s order, and the facts. Contrary to the motion for rehearing, the trial court’s order did not explicitly nor implicitly “reject” the testimony of the officer who stopped Daley, in part, with respect to the bicycle light infraction. In fact, the order states “[The officer] spotted [Daley], who was riding his bicycle away from the perimeter; the bicycle had no headlights.” Moreover, the officer did not testify that the bicycle light infraction was the sole basis for the stop. He testified that he stopped Daley because “[h]e did not have a light on his bike and, again, like I said, he matched the description of the suspect, the clothing of the suspect in the burglary by the victim.” The motion also reargues the merits, which were sufficiently addressed in our opinion. Daley matched the sex, race, and height of the suspect. He was wearing a grey hooded sweatshirt, as was the BOLO suspect. His direction of travel was headed from the location of the purported crime toward the perimeter set up several blocks away, as distinct from coming toward the officers from outside the perimeter. The BOLO suspect was described as being in his “30s”; at the time of the stop, Daley was 42 years old (per the booking sheet that is in the record). He was stopped while riding a bicycle without lights at 1:24 a.m., three blocks from where a crime had been reported moments earlier. To paraphrase the State’s question posed at the suppression hearing, “if an officer can’t stop somebody [per the BOLO-match and circumstances present in this case], then why are we having these perimeters set up in the first place?” Accordingly, I join in denying Daley’s motion, as it is a “request [of] the court to change its mind as to a matter which has already received the careful attention of the judges.” Lawyers Title Ins. Corp. v. Reitzes, 631 So. 2d 1100 , 1101 (Fla. 4th DCA 1993) (quoting State ex rel. Jaytex Realty Co. v. Green, 105 So. 2d 817 , 818–19 (Fla. 1st DCA 1958)). GROSS, J., dissenting. The panel opinion ignores the law for appellate review of state appeals of orders granting motions to suppress evidence obtained by search and seizure. Contrary to well-established law, the panel opinion rejects the findings of fact of the trial judge, an approach starkly different from defense appeals of orders denying motions to suppress evidence under the Fourth Amendment. At the hearing on the motion to suppress, the arresting officer testified that the “basis of the stop” was a bicycle light infraction. A BOLO described a burglary suspect as a black male, 5′11″ tall, wearing a gray, hooded sweatshirt. The BOLO did not specify whether the suspect was in a vehicle, on foot, or on a bicycle. When stopped, appellee was on a bicycle. He did not try to flee. The trial judge found that appellee was a black male, 2 5′10″ tall and that he wore a gray sweatshirt. A show-up identification established that appellee was not the burglary suspect. At the hearing, the state took the position that the stop was based on the municipal infraction of riding a bicycle without a light. The defense contended that the stop was based on the “bare bones” BOLO. The trial judge rejected the state’s position that the stop was based on the traffic infraction and found that the stop was based on the “legally insufficient” BOLO. To explain how the panel opinion was wrongly decided, I adopt the well- reasoned, compelling argument contained in appellee’s motion for rehearing: This Court held: “Due to the BOLO and the bicycle light infraction, the law enforcement officers had reasonable suspicion to stop Defendant. Thus, the trial court erred by granting Defendant’s motion to suppress based solely on the conclusion that ‘there was no reasonable suspicion to justify the traffic stop of Defendant.’” Daley, 2020 WL 5652362 at 3. In so holding, this Court overlooks or misapprehends the law and facts of this case. First, this Court relies extensively on the bike light infraction as the basis or contributing factor justifying the stop. However, the trial court, as the arbiter of the facts, rejected the officer’s claim that he stopped Appellee because of the bicycle light infraction. Based upon the trial court’s statements during the hearing and the written order, the trial court makes clear it believed the officer saw the missing bike light only after he had already stopped Appellee for the BOLO. The question of whether the bike light was the basis for the stop was placed squarely before the trial court and the trial court unquestionably rejected that fact by ruling that the basis for the stop was the BOLO alone. This Court is not at liberty to disregard or second-guess that finding. “A reviewing court is bound by the trial court’s findings of fact—even if only implicit—made after a suppression hearing, unless they are clearly erroneous.” State v. Setzler, 667 So. 2d 343 , 346 (Fla. 1st DCA 1995); see State v. K.C., 207 So. 3d 951 , 953 (Fla. 4th DCA 2016) (trial court’s ruling implicitly rejected State’s contentions); State v. Dorsey, 991 So. 2d 393 , 394 (Fla. 1st DCA 2008) (same). “We 3 must construe all the evidence, and reasonable inferences therefrom, in a manner most favorable to sustaining the trial court’s ruling.” Hines v. State, 737 So. 2d 1182 , 1184 (Fla. 1st DCA 1999). It is a well-settled principle of law that an appellate court, unlike a trial judge, is not a competent trier-of-fact. See Hurst v. State, 18 So. 3d 975 , 988 (Fla. 2009) (the appellate court does not substitute its judgment for that of the trial court on questions of fact, witness credibility, or weighing the evidence); Kellar v. Estate of Kellar, 257 So. 3d 1044 , 1045 (Fla. 4th DCA 2018) (the appellate court is prohibited from reevaluating the evidence and substituting its judgment for that of the finder of the facts); Wilson v. State, 191 So. 3d 537 , 538–39 (Fla. 1st DCA 2016) (the trial court has the superior vantage point to judge bearing, demeanor, and credibility of witnesses). There is good reason for this principle. “The liar’s story may seem uncontradicted to one who merely reads it, yet it may be ‘contradicted’ in the trial court by his manner, his intonations, his grimaces, his gestures, and the like—all matters which ‘cold print does not preserve’ and which constitute ‘lost evidence’ so far as an upper court is concerned . . . .” Broadcast Music, Inc. v. Havana Madrid Restaurant Corp., 175 F.2d 77 , 80 (2d Cir. 1949) (footnotes omitted). “The best and most accurate record is like a dehydrated peach; it has neither the substance nor the flavor of the fruit before it was dried.” Id. The trial court is in a superior position “to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor, and credibility of the witnesses.” Shaw v. Shaw, 334 So. 2d 13 , 16 (Fla. 1976). As the Court’s opinion stands now, the analysis directly contradicts the trial court’s fact-finding that the stop was not based in any way on the traffic infraction. Instead, the Court’s opinion reads as if it is making its own factual finding about the bike light infraction, unconnected with the trial court’s factual finding. Daley, 2020 WL 5652362 at 2-3. If the Court is going to disregard this established maxim of appellate review, it needs to do so explicitly so the parties can challenge the ruling. 4  Second, this Court likewise misapprehends facts about whether Appellee “matched” the BOLO. This Court’s opinion states that the BOLO was legally sufficient because Appellee “matched the gender, race, height, and clothing identified in the BOLO, while being mere blocks away from where the burglary had just occurred, and while riding his bike away from the burglary scene.” Daley, 2020 WL 5652362 at 2. This misconstrues the facts. The BOLO was for a black male, 5′11″-6′0″, in his 30’s, wearing a nondescript gray sweatshirt. At the time of the stop, the officer knew that Appellee was a black male wearing a gray sweatshirt three blocks away from the burglary. The characteristics that did not match far outweighed any purported match. Appellee is in his 40’s, not his 30’s. The officer had no idea how tall Appellee was because he was sitting on a bike. There was no reason to think from the BOLO that the suspect was even on a bike. The suspect’s direction of travel was unknown. It is a mischaracterization to state that Appellee was riding “away from the burglary scene” simply because he was riding in the neighborhood three blocks away. These discrepancies and unknown factors, by definition, are not articulable facts to support reasonable suspicion for a stop. The details of the BOLO that match Appellee are so lacking that the description cannot provide particularized, reasonable suspicion to stop anyone. To state it more plainly, this Court’s opinion authorizes the officer to stop any black man wearing a grey sweatshirt in the neighborhood. That is unquestionably not sufficient cause under the prevailing case law cited by the trial court and in the answer brief. Third, the Court’s opinion distinguishes the cases cited by the trial court based upon the incorrect facts and law noted above. In discussing M.M. v. State, 80 So. 3d 1125 (Fla. 4th DCA 2012), this Court asserts that the BOLO in M.M. provided only the gender and race of the suspect while the BOLO in the instant case was “substantially more detailed.” To be clear, M.M. also included the fact that the police stopped the defendant within three minutes of the crime, three blocks away from the scene. 5  At the time of the stop in the instant case, the officer knew only that Appellee matched gender, race, grey sweatshirt, three blocks away within some unknown amount of time. The only additional fact in the instant case is that Appellee was wearing a nondescript grey sweatshirt. Such a common article of clothing is not distinctive enough to provide an articulable fact that leads to the conclusion that Appellee was the likely burglar. Moreover, this Court relied on the traffic infraction to bolster the basis of the stop, despite the trial court’s rejection of that fact. Likewise, in discussing Gaines v. State, 155 So. 3d 1264 (Fla. 4th DCA 2015), this Court emphasized the single discrepancy in the clothing description between Gaines and the BOLO as a distinction from the instant case where the clothing matched. This ignores the multiple discrepancies or unknowns in the instant case between the BOLO and Appellee, including Appellee’s age, the bicycle, known height at the time of the stop, and direction of the suspect’s travel. Again, this Court relied on the bike light infraction as an additional ground for the stop here that did not exist in Gaines, despite the trial court’s rejection of that fact. In discussing Pantin v. State, 872 So. 2d 1000 (Fla. 4th DCA 2004), this Court noted that the BOLO there lacked information about the speed, direction, or route of travel of the suspect. This Court fails to acknowledge, however, that the same information was lacking from the BOLO in the instant case. Instead, it relies on the fact that Appellee was present three blocks away and riding from the direction of the crime scene. But those facts do not “match” the BOLO; the BOLO in the instant case contained no information about mode or direction of flight. Nor do those factors provide reason to suspect Appellee more so than any other black male who may have been in the neighborhood. Most disturbing here is the panel opinion’s departure from the manner in which we treat a defendant’s appeal of an order denying a motion to suppress. Where a trial judge says nothing in denying a motion to suppress, we view the facts from the hearing in the light most favorable to upholding the trial court’s ruling. See Pagan v. State, 830 So. 2d 792 , 806 (Fla. 2002) (“[A] trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions 6 derived therefrom in a manner most favorable to sustaining the trial court’s ruling.”); Murray v. State, 692 So. 2d 157 , 159 & n.2 (Fla. 1997) (where the trial court made no factual findings in denying the motion to suppress, the appellate court reviewed “the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling”). Here, the trial judge made findings of fact which the panel opinion rejected. “The evenhandedness of justice as between subject and sovereign is a reassuring doctrine[.]” Irving Younger, Sovereign Admissions: A Comment on United States v. Santos, 43 N.Y.U. L. Rev. 108 , 115 (1968). At a minimum, the law of appellate review should impartially apply the same deference to factual findings of the trial court in appeals brought by the subject and by the sovereign. * * * Not final until disposition of timely filed motion for rehearing. 7

2020-12-02 16:02:58.608617+00

https://edca.4dca.org/DCADocs/2019/0835/190835_DC05_12022020_095222_i.pdf

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT KESHAWN BENJAMIN SHIVERS, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D19-835 [December 2, 2020] Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Dan L. Vaughn, Judge; L.T. Case No. 562018CF000079B. Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public Defender, West Palm Beach, for appellant. Ashley Moody, Attorney General, Tallahassee, and Alexandra A. Folley, Assistant Attorney General, West Palm Beach, for appellee. KUNTZ, J. Keshawn Benjamin Shivers appeals his sentences imposed after he pleaded no contest to five counts committed while he was a juvenile: (I) burglary of a dwelling with an assault or battery while armed or masked; (II) robbery with a deadly weapon while masked; (III) grand theft while masked; (IV) false imprisonment while masked; and (V) aggravated battery with a deadly weapon while masked. He challenges his concurrent 25- year prison sentences imposed on counts I, II, and V. We affirm in part and remand in part. The State correctly concedes that Shivers is entitled to judicial review of the 25-year sentences imposed on counts I and II. The convictions for those counts, burglary of a dwelling with assault or battery while armed and masked and robbery with a deadly weapon while masked, are first- degree felonies punishable by “a term of years not exceeding life imprisonment.” § 810.02(2)(a)–(b), Fla. Stat. (2017) (burglary); § 812.13(2)(a), Fla. Stat. (2017) (robbery).  Sections 775.082(3)(c) and 921.1402(2)(d), Florida Statutes (2017), provide that a juvenile sentenced to a term of 20 years or more for a nonhomicide first-degree felony punishable by a term of years not exceeding life is entitled to review of the sentence after 20 years. Shivers is correct that he is entitled to this review of his sentences for counts I and II. On remand, the court must correct the judgment to reflect that Shivers is entitled to review of these sentences after 20 years. But we disagree with Shivers that he is entitled to judicial review of his sentence on count V in 20 years. Count V, aggravated battery with a deadly weapon while masked, is a first-degree felony punishable by up to thirty years in prison. See §§ 784.045(2), 775.0845(2)(b), 775.082(3)(b)1., Fla. Stat. (2017). Shivers acknowledges that because aggravated battery while masked is reclassified as a first-degree felony—as opposed to a first- degree felony punishable by life—he is not eligible for sentence review of this offense. See § 775.082(3)(c), Fla. Stat. But he argues denying him review on this sentence would violate the Eighth Amendment and Equal Protection Clause. 1 Although it is true that Shivers’s sentences result in an anomaly because he is not entitled to judicial review on the less severe first-degree felony, we reject his argument. “Embodied in the Constitution’s ban on cruel and unusual punishments is the ‘precept of justice that punishment for crime should be graduated and proportioned to [the] offense.’” Graham v. Florida, 560 U.S. 48 , 59 (2010) (alteration in original) (quoting Weems v. United States, 217 U.S. 349 , 367 (1910)). A proportionality analysis includes analyzing three objective criteria: “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Solem v. Helm, 463 U.S. 277 , 292 (1983). But the proportionality analysis does not focus on “the specific facts of a particular case.” Peters v. State, 128 So. 3d 832 , 850 (Fla. 4th DCA 2013) (quoting Edwards v. State, 885 So. 2d 1039 , 1039 (Fla. 4th DCA 2004)). This is because the legislature generally retains the authority to “prohibit any act, determine the class of an offense, and prescribe punishment.” Id. (quoting Iacovone v. State, 639 So. 2d 1108 , 1109 (Fla. 2d DCA 1994)). The legislature has already determined the class of Shivers’s offenses and prescribed their punishment. His sentences on counts I and II implicate sections 775.082(3)(c) and 921.1402(2)(d) and require review of 1 We affirm the Equal Protection Clause challenge without comment. 2 those sentences because he faced life imprisonment. But he did not face a life sentence on count V and, as a result, sections 775.082(3)(c) and 921.1402(2)(d) were not implicated. See State v. Purdy, 252 So. 3d 723 , 727 (Fla. 2018). Further, Shivers’s sentence on count V does not, by itself, violate Graham or Miller v. Alabama, 567 U.S. 460 (2012). To violate Graham and Miller, a defendant must show a sentence “meets the threshold requirement of being a life sentence or the functional equivalent of a life sentence.” Pedroza v. State, 291 So. 3d 541 , 548 (Fla. 2020) (citing Morris v. State, 246 So. 3d 244 , 245–46 (Fla. 2018) (Lawson, J., dissenting)). Only the “lengthy” term-of-years sentences that “approach or envelop the entirety of a defendant’s ‘natural life’” must allow a meaningful opportunity for early release. Id. at 546 (quoting Henry v. State, 175 So. 3d 675 , 679 (Fla. 2015)). 2 Shivers failed to show his 25-year sentence on count V violates the Eighth Amendment, Graham, or Miller. Cf. Pedroza, 291 So. 3d at 549 (holding that defendant’s 40-year sentence for second-degree murder did not violate Miller or Henry). We affirm Shivers’s sentences but remand for the circuit court to correct his sentences on counts I and II. Shivers need not be present for the correction of the sentences. See, e.g., James v. State, 258 So. 3d 468 , 469 (Fla. 4th DCA 2018). Affirmed and remanded. GROSS and MAY, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing. 2This case is also distinguishable from Mack v. State, No. 2D18-3113, 2020 WL 4030671 (Fla. 2d DCA July 17, 2020), because the sentences here are concurrent. In Mack, the defendant’s third sentence was consecutive to the other two that allowed review. Id. at *1. 3

2020-12-02 16:03:00.133947+00

https://edca.4dca.org/DCADocs/2019/3962/193962_DC05_12022020_100402_i.pdf

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT CSC SERVICEWORKS, INC., Appellant, v. BOCA BAYOU CONDOMINIUM ASSOCIATION, INC., Appellee. No. 4D19-3962 [December 2, 2020] Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Scott R. Kerner, Judge; L.T. Case No. 502016CA011456. David P. Reiner, II of Reiner & Reiner, P.A., Miami, for appellant. Kenneth E. Zeilberger of Backer Aboud Poliakoff & Foelster, LLP, Boca Raton, for appellee. GERBER, J. The former lessee appeals from the circuit court’s final order granting the association’s motion for summary judgment on the former lessee’s actions for wrongful eviction, breach of lease, and declaratory relief. The former lessee argues the circuit court erred in basing its summary judgment on three findings: (1) the doctrines of res judicata and collateral estoppel (arising from a prior jury verdict in an unlawful detainer action) barred the instant actions; (2) the former lessee waived its unlawful eviction claim by voluntarily surrendering the premises; and (3) the lease expired before the former lessee attempted to exercise its right of first refusal to meet a new lessee’s offer to lease the premises. Although we agree with the former lessee that the circuit court’s first and second findings were improper, we conclude the circuit court’s third finding was proper. Thus, we affirm the summary judgment. We present this opinion in three parts: 1. The former lessee’s first appeal; 2. The proceedings after the first appeal; and 3. This appeal.  1. The Former Lessee’s First Appeal This appeal is the second time in which the parties’ dispute has reached our court. See generally CSC Serviceworks, Inc. v. Boca Bayou Condo. Ass’n, Inc., 240 So. 3d 12 (Fla. 4th DCA 2018) (“CSC I”). CSC I sets forth the case’s factual background and procedural history, to which we will add as necessary for this appeal. In 2000, the former lessee entered into a seven-year written laundry space lease with the association. Id. at 13 . The lease provided the former lessee would furnish and install commercial washers and dryers in each of the association’s twenty-six laundry rooms. Id. Pertinent to this appeal, the lease included a right of first refusal clause providing: That should [the association] upon the expiration of the final Lease term, including renewals, elect to[] Lease the premises to any other person or entity similarly engaged in the business of operating laundry Equipment or purchase Equipment, then [the former lessee] shall have the right of first refusal to meet any bona fide executed contract offer to let the premises, or to sell equipment, under the identical terms and conditions of such offer and this provision shall survive for one (1) year after the expiration of the Lease. The lease also contained a clause providing: “[T]his Lease incorporates all oral promises between the parties, [and] can only be amended in writing signed by both parties ....” Before the initial seven-year lease term expired, the association and the former lessee extended the lease for an additional seven years. Id. In 2014, when the extended lease expired, the association and the former lessee orally agreed the former lessee could continue to occupy the laundry rooms and pay rent to the association on a month-to-month basis. Id. This arrangement continued for nearly two years before the association began receiving various complaints from the residents. Id. In 2016, the association began to solicit bids for the lease of the laundry rooms. Id. The former lessee actively participated in the bidding process; however, the association ultimately selected a new lessee as its new laundry service provider. Id. 2  On August 16, 2016, the association sent the former lessee a letter canceling the lease and asking when it could expect the former lessee to remove its machines. Id. Shortly thereafter, on August 25, 2016, the new lessee also contacted the former lessee and inquired as to when the machines would be removed. Id. The former lessee’s representative responded that she would “schedule something.” Id. The following day, the new lessee e-mailed the same representative advising that its machines would be arriving on September 21, 2016 and asking that the former lessee remove its machines by September 27, 2016. Id. The former lessee’s representative did not respond to the e-mail. Id. On August 31, 2016, the new lessee again contacted the former lessee’s representative to schedule a definite removal date. Id. The representative responded that she would contact an installation technician about scheduling something and would follow up after she made some progress. Id. The former lessee’s representative never followed up as promised. Id. On September 19, 2016, the former lessee notified the association and the new lessee that the former lessee intended to enforce its right of first refusal. Id. The former lessee provided the association with a copy of the written lease which the association had entered into with the new lessee, but upon which the former lessee had written its name over the new lessee’s name. The association did not sign the former lessee’s purported lease. Instead, later that day, the association notified the former lessee that the association had rejected the former lessee’s belated attempt to exercise its right of first refusal. Id. On September 27, 2016, when the new lessee arrived to install its machines as scheduled, the former lessee’s machines were still connected to the laundry rooms’ utility lines. Id. With the association’s approval, the new lessee disconnected each one of the former lessee’s machines and moved them aside within the laundry rooms. Id. On October 3, 2016, the association sent the former lessee a pre-suit demand letter advising that if the former lessee did not remove its machines from the laundry rooms within fifteen days, the association would file a tenant eviction action. Id. The former lessee removed its machines before any eviction action was filed. Id. The former lessee thereafter sued the association and the new lessee, alleging causes of actions for breach of the lease agreement, tortious interference, conversion, and unlawful detainer. Id. The former lessee 3 successfully moved to sever its unlawful detainer claim for an immediate jury trial before the other three actions would proceed. Id. at 13-14 . At that jury trial, the former lessee moved for a directed verdict at the close of the evidence, arguing that the association, by directing the new lessee to disconnect the former lessee’s machines without legal process or the former lessee’s consent, unlawfully ousted the former lessee from the laundry rooms. Id. at 14 . The circuit court denied the directed verdict motion, and the jury ultimately rendered a verdict in the association’s and the new lessee’s favor. Id. On appeal, the former lessee argued the circuit court erred in denying the directed verdict motion, because the undisputed trial evidence established the association directed the new lessee to disconnect the former lessee’s machines and, “for all intents and purposes, retook possession of the laundry rooms without legal process.” Id. The association and the new lessee responded the circuit court correctly denied the directed verdict motion because the former lessee’s “machines were never physically removed from the laundry rooms and the act of ‘disconnecting’ is not equivalent to ‘dispossessing.’” Id. We agreed with the association and the new lessee and thus affirmed. Id. We reasoned, in pertinent part: [T]he [association’s and new lessee’s] act of disconnecting the machines and moving them to the other side of the laundry rooms did not have the effect of ousting [the former lessee] of its possession of the laundry rooms as contemplated under the unlawful detainer statute. Any connection rights that [the former lessee] may have had were related to its leasehold interest which, as acknowledged by [the former lessee], was not at issue in the unlawful detainer action. See § 82.05, Fla. Stat. (2017) (providing that “[n]o question of title, but only right of possession and damages, is involved in the action” of unlawful detainer); Se. Fid. Ins. Co. v. Berman, 231 So. 2d 249 , 251 (Fla. 3d DCA 1970) (reiterating that “[t]he gist of an action for unlawful detainer is the unlawful withholding of possession by the defendant,” and holding that an unlawful detainer action “is not the proper remedy where it is obvious to the trial judge that plaintiff is substantially seeking an adjudication of title”). Id. 4  2. The Proceedings After the First Appeal After the first appeal, the parties resumed litigating the former lessee’s other claims. The former lessee was granted leave to file an amended complaint. The amended complaint alleged three counts against the association: (1) wrongful eviction, (2) breach of lease, and (3) declaratory judgment. On the wrongful eviction count, the former lessee alleged the association, by directing the new lessee to disconnect and move the former lessee’s laundry equipment, violated section 83.21, Florida Statutes (2016), which requires the filing of an eviction action, and instead “wrongfully resorted to self-help.” On the breach of lease count, the former lessee alleged the association, by directing the new lessee to disconnect and move the former lessee’s laundry equipment, violated the following lease provisions: [The association] agrees that [the former lessee] shall have the right of quiet enjoyment of the demised premises, including unobstructed access to and from until the expiration of the Lease term or any extension thereof. .... …. [The association] shall not move or remove, disconnect or tamper with the [the former lessee’s] machines or restrict access for any reason whatsoever. [The association] further agrees that it will not permit any other ... laundry machines ... on the premises, .... A breach of the covenants contained in this Paragraph ... shall be deemed to constitute Constructive Eviction .... On the declaratory judgment count, the former lessee alleged it was in doubt as to its rights, requiring the circuit court’s intervention, because: 37. [The former lessee] asserts that it has present and continuing vested rights under the express terms of the [2016] Lease ... which [the former lessee] accepted by properly exercising its [right of first refusal]. ... 38. The Association has asserted ... that no such [right of first refusal] survived the expiration of the initial Lease term, 5  and that the Association has no obligation to perform under the [2016] Lease with [the former lessee]. The association’s answer denied the former lessee’s material allegations and raised several affirmative defenses. The association later filed a motion for summary judgment based on three of those defenses, arguing in pertinent part: (1) the previous lease expired by its own terms before the former lessee attempted to exercise its right of first refusal; (2) the former lessee waived its unlawful eviction claim when it voluntarily removed its machines from the premises; and (3) the former lessee was barred from seeking relief based on the doctrines of res judicata and collateral estoppel arising from the prior adverse jury verdict on the unlawful detainer action. After a hearing (before a different judge than the one who conducted the unlawful detainer trial), the circuit court entered its final order granting the association’s summary judgment motion on the three grounds raises above. 3. This Appeal This appeal followed. The former lessee argues the circuit court erred in three respects: (1) by finding res judicata and collateral estoppel arising from the unlawful detainer jury verdict barred the remaining claims; (2) by finding the former lessee waived its unlawful eviction claim by voluntarily surrendering the premises; and (3) by finding the lease expired before the former lessee attempted to exercise its right of first refusal to meet the new lessee’s offer to lease the premises. Although we agree with the former lessee that the circuit court’s first and second findings were improper, we conclude the circuit court’s third finding was proper. We address each finding in turn. a. Res Judicata and Collateral Estoppel “A [circuit] court’s ruling concerning the application of res judicata and collateral estoppel is ... reviewed de novo.” Aronowitz v. Home Diagnostics, Inc., 174 So. 3d 1062 , 1065 (Fla. 4th DCA 2015). [U]nder res adjudicata a final decree of judgment bars a subsequent suit between the same parties based upon the same cause of action and is conclusive as to all matters germane thereto that were or could have been raised, while [collateral estoppel] is applicable where the two causes of 6  action are different, in which case the judgment in the first suit only estops the parties from litigating in the second suit issues—that is to say points and questions—common to both causes of action and which were actually adjudicated in the prior litigation. Gordon v. Gordon, 59 So. 2d 40 , 44 (Fla. 1952). “For res judicata to apply, there must be four identities: (1) identity of thing sued for, (2) identity of cause of action, (3) identity of persons and parties to the action, and (4) identity of quality or capacity of persons for or against whom the claim is made.” Leahy v. Batmasian, 960 So. 2d 14 , 17 (Fla. 4th DCA 2007). Here, the circuit court erred in finding res judicata barred the former lessee’s instant actions. The first two necessary identities, of the “thing sued for,” and of the “cause of action,” were lacking. The prior action was for unlawful detainer, and the “thing sued for” in the prior action was the former lessee’s possessory right to access the laundry rooms. The instant actions are for wrongful eviction, breach of lease, and declaratory judgment, and the “thing sued for” in the instant actions is the former lessee’s alleged contractual right to maintain its machines in the laundry rooms. As we held in CSC I: “Any connection rights that [the former lessee] may have had were related to its leasehold interest which, as acknowledged by [the former lessee], was not at issue in the unlawful detainer action.” 240 So. 3d at 14 (emphasis added). Similarly, the circuit court erred in finding collateral estoppel barred the former lessee’s instant actions. “For [collateral estoppel] to apply, the following [five] elements must be met: (1) an identical issue must be presented in a prior proceeding; (2) the issue must have been a critical and necessary part of the prior determination; (3) there must have been a full and fair opportunity to litigate the issue; (4) the parties in the two proceedings must be identical; and (5) the issues must have been actually litigated.” Provident Life & Accident Ins. Co. v. Genovese, 138 So. 3d 474 , 477 (Fla. 4th DCA 2014). Here, the prior action examined whether the association had infringed upon the lessee’s possessory right to access the laundry rooms. The instant actions presented different issues, those being whether the association wrongfully evicted the former lessee and breached the parties’ lease by having the former lessee’s machines disconnected. 7  b. Waiver The circuit court also erred in finding the former lessee waived its unlawful eviction claim by voluntarily surrendering the premises. Because the facts upon which the circuit court based its finding that the former lessee waived its claims were undisputed, our review of that finding is de novo. Cf. Truly Nolen of Am., Inc. v. King Cole Condo. Ass’n, 143 So. 3d 1015 , 1017 (Fla. 3d DCA 2014) (“The only issue before us on appeal is whether [appellant] waived its right to compel arbitration – a determination we make de novo because the underlying facts are undisputed.”). “A wrongfully evicted tenant may bring an action against the landlord for damages.” LK Grp. Holding Co. v. Spurrier Investments, Inc., 110 So. 3d 511 , 511-12 (Fla. 4th DCA 2013). “In order to be actionable, the eviction must be ‘wrongful or unlawful.’” Id. at 512 (citation omitted). One type of “unlawful” eviction occurs when the landlord exercises “self-help” to evict the tenant. See Sheradsky v. Basadre, 452 So. 2d 599 , 603 (Fla. 3d DCA 1984) (“The record indicates that [the lessee] did have a valid claim for wrongful eviction … because the purchasers of the apartment complex unlawfully resorted to self-help to remove the [lessee’s] machines in violation of Section 83.21, Florida Statutes ....”). However, “[a] party may waive any right to which [that party] is legally entitled, whether secured by contract, conferred by statute, or guaranteed by the Constitution.” DK Arena, Inc. v. EB Acquisitions I, LLC, 112 So. 3d 85 , 97 (Fla. 2013). As we held in LeNeve v. Via South Florida, L.L.C., 908 So. 2d 530 (Fla. 4th DCA 2005): Waiver is the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right. ... [T]hree circumstances give rise to a waiver: (1) the existence of a right which may be waived; (2) actual or constructive knowledge of the right; and (3) the intent to relinquish the right. Proof of these elements may be express[] or implied from conduct or acts that lead a party to believe a right has been waived. Id. at 535 (internal citations and quotation marks omitted). Here, the former lessee may have had a valid unlawful eviction claim. Section 83.05(2), Florida Statutes (2016), provides only three methods by which a landlord may recover possession of rented premises: 8  (a) In an action for possession under s. 83.20, or other civil action in which the issue of right of possession is determined; (b) When the tenant has surrendered possession of the rented premises to the landlord; or (c) When the tenant has abandoned the rented premises. § 83.05(2), Fla. Stat. (2016). The association, rather than filing eviction proceedings as section 83.05(2)(a) permitted, instead effected a “self-help” eviction when it directed the new lessee to disconnect the former lessee’s machines and replace them with its own. As the former lessee argued in the circuit court: “[T]he [association’s] wrongful act of instructing [the new lessee] to disconnect [the former lessee’s] equipment and render it useless for the purpose the lease intended, constituted wrongful eviction.” Further, the former lessee did not waive that wrongful eviction claim when, in response to the association’s pre-suit demand letter to remove its machines from the laundry rooms, the former lessee did so. By that time, the association already had accomplished its “self-help” eviction by having directed the new lessee to disconnect the former lessee’s machines and replace them with its own. No facts exist to support the association’s claim that the former lessee, by removing its disconnected machines, intended to relinquish its right to pursue a wrongful eviction claim. Rather, the record indicates the only reason why the former lessee removed its disconnected machines was to protect those machines from the possibility of damage. Thus, the circuit court erred in treating that action as the former lessee’s waiver of its wrongful eviction claim. Despite the circuit court improperly finding the former lessee waived its wrongful eviction claim, that error was harmless. The wrongful eviction claim appears to have sought damages for the future monetary income which the former lessee lost as a result of the association’s termination of the former lessee’s right to the exclusive and quiet use, possession and enjoyment and access to the laundry rooms. However, as the next section explains, the lease had expired before the association had directed the new lessee to disconnect the former lessee’s machines. When the extended lease expired in 2014, the former lessee became a month-to-month tenant at will, per the parties’ oral agreement. See § 83.04, Fla. Stat. (2016) (“When any tenancy created by an instrument in 9 writing, the term of which is limited, has expired and the tenant holds over in the possession of said premises without renewing the lease by some further instrument in writing then such holding over shall be construed to be a tenancy at sufferance.”); § 83.01, Fla. Stat. (2016) (“Any lease of lands and tenements, or either, made shall be deemed and held to be a tenancy at will unless it shall be in writing signed by the lessor. Such tenancy shall be from year to year, or quarter to quarter, or month to month, or week to week, to be determined by the periods at which the rent is payable.”). Thus, when the association sent the former lessee a letter canceling the lease, the tenancy terminated fifteen days later. See § 83.03(3), Fla. Stat. (2016) (“A tenancy at will may be terminated by either party giving notice as follows: … Where the tenancy is from month to month, by giving not less than 15 days’ notice prior to the end of any monthly period[.]”). As a result, by the time the association had directed the new lessee to disconnect the former lessee’s machines, the former lessee’s tenancy had terminated, and the former lessee was no longer entitled to possession of the laundry rooms nor the ability to operate its machines for its benefit. c. Lease Expiration Because the circuit court interpreted the lease to find that the lease expired before the former lessee attempted to exercise its right of first refusal (and before the association had directed the new lessee to disconnect the former lessee’s machines), our review of that finding is de novo. See Jackson v. The Shakespeare Found., Inc., 108 So. 3d 587 , 593 (Fla. 2013) (“[A] matter of contract interpretation ... is a question of law subject to de novo review.”). Although our review is de novo, we adopt the circuit court’s reasoning supporting its finding on this issue: [I]t is undisputed that the written Lease originally entered into by the parties in 2000, expired by its own terms in October 2014. The parties did not execute any other written amendments to the Lease, as required by section C.3 of the Lease. The parties merely orally agreed that the [former lessee] could continue to occupy the leased premises on a month-to-month basis. The oral month-to-month arrangement continued until August 16, 2016, on which date the Association served [the former lessee] with a written notice of cancellation of the oral month-to-month arrangement. Pursuant to Florida Statute Chapter 83, oral leases are terminable at will, as long as written notice of termination is 10  served by either party to the oral Lease. See Fla. Stat. § 83.03 . It is undisputed that the Association provided written notice of the termination of the oral Lease. To the extent [the former lessee] relies on its right of first refusal to claim that it somehow had the right to remain in possession, the [c]ourt disagrees. As noted herein, section 3.1 of the Lease provided that the [former lessee’s] right of first refusal expired “... one year after the termination of the Lease”. Here, the Lease expired on October 30, 2014, and there were no written addenda to the Lease. Consequently, pursuant to section 3.1, any right of first refusal expired on October 30, 2015. Therefore, ... the [former lessee’s] attempt to first exercise its right of first refusal on September 19, 2016, was untimely, and thus unenforceable. Finally … once the written Lease terminated, the option terminated as well. See[,] e.g.[,] Douglass v. Jones, 422 So. 2d 352 (Fla. 5th DCA 1982) (where [l]ease was not timely renewed and the option to buy was, by its own terms, dependent upon the validity of the [l]ease, the option to buy terminated even though the terms of the [l]ease continued to define the ensuing month-to-month tenancy), and Gower-Goheen Realty, Inc., 215 So. 2d 499 (Fla. [2d] DCA 1968) ([w]here lessee held over after termination of [l]ease, the [lease] terms ... were still in effect, but the option to purchase was not exercisable). In sum, [the former lessee] had absolutely no legal right to lawful possession. The written Lease had terminated, the right of first refusal had … expired by its own terms, the untimely made right of first refusal was rejected and written notice to vacate was provided. [The former lessee] thereafter … vacated the property after being advised that the Association would bring an eviction action. Conclusion Based on the foregoing, although we have disagreed in part with the circuit court’s first and second reasons for granting the association’s motion for summary judgment, we have agreed with the circuit court’s third reason for granting the association’s motion for summary judgment. We also conclude the circuit court correctly denied the former lessee’s motion for partial summary judgment on its wrongful eviction claim. We thus affirm the final judgment in the association’s favor. 11  Affirmed. WARNER and ARTAU, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing. 12

2021-01-26 21:00:46.99343+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2021/01/26/20-15034.pdf

FILED NOT FOR PUBLICATION JAN 26 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT In re: VOLKSWAGEN “CLEAN No. 20-15034 DIESEL” MARKETING, SALES PRACTICES, AND PRODUCTS D.C. Nos. 3:16-cv-02086-CRB LIABILITY LITIGATION, 3:15-md-02672-CRB ______________________________ J. BERTOLET, INC., DBA J. Bertolet MEMORANDUM* Volkswagen, a Pennsylvania corporation; DIRECT B, LLC, DBA Brandon Volkswagen, a Florida limited liability company; SAI AUTO GROUP, LLC, DBA Bozzani Volkswagen, a California limited liability company, individually, on behalf of themselves and all similarly situated persons and entities, Plaintiffs-Appellants, v. ROBERT BOSCH, LLC, a Michigan limited liability company; ROBERT BOSCH GMBH, a German corporation, Defendants-Appellees. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.  Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding Argued and Submitted January 15, 2021 San Francisco, California Before: SCHROEDER, BYBEE, and R. NELSON, Circuit Judges. Plaintiffs/Appellants J. Bertolet, Inc. d/b/a J. Bertolet Volkswagen (Bertolet VW), Direct B, LLC d/b/a Brandon Volkswagen (Brandon VW), and SAI Auto Group, LLC d/b/a Bozzani Volkswagen (Bozzani VW) (collectively, Plaintiffs) are three Volkswagen-branded franchise dealers who sold turbocharged direct injection diesel engine vehicles equipped with defeat devices (TDIs) between 2009 and 2015. According to Plaintiffs, Defendants/Appellees, Robert Bosch GmbH and Robert Bosch LLC (collectively, Bosch) (1) knowingly conspired with Volkswagen to develop, implement, and promote defeat devices—software that allowed TDI vehicles to appear compliant during emissions testing—thereby participating in a racketeering enterprise in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962 (c); and (2) also conspired to violate that statute, id. § 1962(d). The district court granted summary judgment in favor of Bosch because Plaintiffs failed to establish that their claimed injuries (future lost profits from the 2 cessation of the TDI line and Volkswagen’s buyback program following the public revelation of the defeat devices) were caused “by reason of” the RICO violations. Plaintiffs timely appealed. Because the parties are familiar with the facts, we will not recite them here. We have jurisdiction under 28 U.S.C. § 1291 . We affirm. We review the district court’s grant of summary judgment de novo and “may affirm on any basis supported by the record.” Gordon v. Virtumundo, Inc., 575 F.3d 1040 , 1047 (9th Cir. 2009) (citation omitted). Our review is “governed by the same standard used by the trial court under Federal Rule of Civil Procedure 56(c).” Adcock v. Chrysler Corp., 166 F.3d 1290 , 1292 (9th Cir. 1999). RICO provides a civil cause of action to “[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter . . . .” 18 U.S.C. § 1964 (c). Standing for civil RICO claims thus requires: (1) an alleged harm that qualifies as an injury to the plaintiff’s business or property; and (2) that the harm was “by reason of” the RICO violation, which requires the plaintiff to demonstrate proximate causation. See Canyon Cnty. v. Syngenta Seeds, Inc., 519 F.3d 969 , 972 (9th Cir. 2008) (citing Holmes v. Secs. Inv. Protection Corp., 503 U.S. 258 , 268 (1992)). The parties dispute both elements: (1) whether Plaintiffs’ claimed damages from the discontinuation of the TDI line and the buyback constitute an injury to their “business or property” within the meaning of RICO; 3 and (2) whether Bosch’s alleged participation in the defeat device scheme proximately caused Plaintiffs’ injuries. Because Plaintiffs’ claimed damages were not proximately caused by the alleged racketeering activity, we decline to address whether Plaintiffs have suffered an injury to their business or property within the meaning of RICO. “The Supreme Court has interpreted the phrase ‘by reason of’ in 18 U.S.C. § 1964 (c) to require, as elements for a civil RICO recovery, both proximate and but-for causation.” Painters and Allied Trades Dist. Council 82 Health Care Fund v. Takeda Pharms. Co. Ltd., 943 F.3d 1243 , 1248 (9th Cir. 2019) (citing Holmes, 503 U.S. at 268 ). Proximate cause for RICO purposes requires “some direct relation between the injury asserted and the injurious conduct alleged.” Holmes, 503 U.S. at 268 . Here, Plaintiffs argue that “it was a foreseeable and natural consequence” of Bosch’s participation in Volkswagen’s fraudulent scheme that “once their fraud was exposed and TDIs were entirely withdrawn from the market, Plaintiffs [would lose] the opportunity to sell TDIs and also suffered injuries due to VW’s buyback of TDIs.” But the mere possibility that the initial fraud would be discovered and ultimately cause the cessation of the TDI line and buyback program is not sufficient to establish proximate cause. See Hemi Grp., LLC v. City of New York, 559 U.S. 1 , 12 (2010). 4  Nor is Plaintiffs’ reliance on Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2009) persuasive. There, property lien auction bidders allegedly made fraudulent representations to the county to secure a disproportionate amount of liens at a county tax-lien auction. Id. at 643–44. Although the fraud was perpetrated on the county, the Supreme Court determined that the losing bidders’ alleged injury––the loss of valuable liens––was the “direct result of petitioners’ fraud.” Id. at 658 . But unlike the “zero-sum nature of the auction” in Bridge, Plaintiffs’ theory of proximate causation necessarily encompasses an intervening step: the discovery of the fraud. Hemi Grp., 559 U.S. at 14–15 (discussing Bridge, 553 U.S. at 657–59). That is, Plaintiffs’ damages were caused by reason of the fraud’s discovery, not the fraud itself. See Canyon Cnty., 519 F.3d at 981 (“Where the violation is not itself the immediate cause of the plaintiff’s injury, proximate cause may be lacking.”). Allowing Plaintiffs to recover for all possible consequences of the alleged RICO violations––including fallout from the discovery of RICO violations—runs counter to the notion of proximate cause, which reflects that “there is a point beyond which the wrongdoer should not be held liable.” Holmes, 503 U.S. at 266 n.10 (internal quotation marks and citation omitted). 5  We therefore hold that the district court correctly determined that Plaintiffs’ claimed injuries were not proximately caused by the alleged RICO violations. The district court also correctly granted summary judgment on the state law claims for lack of proximate cause. AFFIRMED. 6

2020-12-02 16:02:46.936949+00

https://www.3dca.flcourts.org/pre_opinion_content_download/692464

Third District Court of Appeal State of Florida Opinion filed December 2, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D20-845 Lower Tribunal No. 20-2111 ________________ Janiel Rodriguez, Appellant, vs. Johnny Falcones, Appellee. An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Reemberto Diaz, Judge. Law Office of Alan I. Karten, PLLC and Alan I. Karten (Boynton Beach), for appellant. No appearance, for appellee. Before EMAS, C.J., and FERNANDEZ and HENDON, JJ. HENDON, J.  Janiel Rodriguez (“Rodriguez”) appeals from an order granting Johnny Falcones’s (“Falcones”) motion to vacate a default final judgment pursuant to Florida Rule of Civil Procedure 1.540(b). We reverse. Facts Falcones was served with the complaint and request for production at his Florida residence on February 4, 2020. His response was due on February 24, 2020. On February 5, 2020, he emailed Rodriguez’s attorney acknowledging service and threatening to sue if he was not removed from the lawsuit. Two days later, Falcones emailed Rodriguez directly, claiming non-involvement in the lawsuit, and affirmatively stating that his lawyers will take care of it. Falcones did not answer the complaint and a clerk’s default was entered against him on March 2, 2020. Despite having notice of the clerk’s default, Falcones failed to respond and a default final judgment was entered against him on March 15, 2020.\ On March 23, 2020, twenty-one days after the initial clerk’s default was entered, Falcones’s attorney, Mr. Morales, entered an appearance and moved to vacate the default final judgment by arguing the court’s alleged lack of subject matter jurisdiction. 1 Falcones did not argue excusable neglect at that time. On May 7, 2020, the trial court denied Falcones’s motion to vacate for lack of subject matter 1 The record indicates that Mr. Morales was also representing Falcones in New York litigation during this same period. 2 jurisdiction. On May 25, 2020, ten weeks after the default final judgment was entered, Falcones filed his second motion to vacate the default final judgment pursuant to Florida Rule of Civil Procedure 1.540(b), together with his answer to the complaint. The trial court held a non-evidentiary hearing after which it issued the June 4, 2020 order vacating the default final judgment. At the hearing, Falcones’s counsel, Mr. Morales, asserted that Falcones’s failure to respond to the complaint and delay in seeking relief from the final judgment was entirely a result of Falcones’s business and family complications engendered by the pandemic. Mr. Morales argued that this was a sufficient showing to vacate the default final judgment. Rodriguez’s counsel, Mr. Karten, explained that the setting aside of a default and a default final judgment are two different procedures, and that Falcones’s motion to vacate the default final judgment was deficient. Mr. Karten pointed out that the motion made only general allegations and failed to provide any factual or legal basis for vacating the final judgment. The trial court did not take any further argument or testimony. Although the trial court recited in its order that it found due diligence, excusable neglect, and meritorious defense, the trial court did not make these findings during the hearing, ruled to accept Falcones’s late-filed answer and granted the motion to set aside the default final judgment as a matter of law based on excusable neglect, due diligence, and meritorious defense. Rodriguez appeals. 3 Standard of Review An order granting a motion to vacate a default final judgment is reviewed for a gross abuse of discretion. Chetu, Inc. v. Franklin First Fin., Ltd., 276 So. 3d 39 , 41 (Fla. 4th DCA 2019); Bequer v. Nat’l City Bank, 46 So. 3d 1199 , 1201 (Fla. 4th DCA 2010); LPP Mortg. Ltd. v. Bank of Am., N.A., 826 So. 2d 462 , 463–64 (Fla. 3d DCA 2002) (applying gross abuse of discretion standard in reviewing trial court's ruling on a motion for relief from judgment under rule 1.540 and quoting the following statement from Schwab & Co. v. Breezy Bay, Inc., 360 So. 2d 117 , 118 (Fla. 3d DCA 1978): “The discretion reposed in the trial judge by Fla. R. Civ. P. 1.540 is of the broadest scope and in order to reverse a judge’s ruling thereunder, there must be a showing of a gross abuse of discretion.”). 2 Discussion The party moving to vacate a default final judgment pursuant to rule 1.540(b) must show three things: (1) the failure to file a responsive pleading was the result of 2 Note that a different rule applies to an interlocutory order of default where no final judgment has been entered. In such a case, a general denial will suffice, and the standard of review is abuse of discretion. See 205 Jacksonville, LLC v. A-Affordable Air, LLC, 16 So. 3d 974 , 976 (Fla. 3d DCA 2009); Gibson Tr., Inc. v. Office of the Attorney Gen., 883 So. 2d 379 , 382 (Fla. 4th DCA 2004); Lloyd’s Underwriter’s at London v. Ruby, Inc., 801 So. 2d 138 , 139 (Fla. 4th DCA 2001); Westinghouse Elevator Co. v. DFS Constr. Co., 438 So. 2d 125 , 127 (Fla. 2d DCA 1983). 4 excusable neglect; and (2) the moving party has a meritorious defense; and (3) the moving party acted with due diligence in seeking relief from the default. See Lazcar Int’l, Inc. v. Caraballo, 957 So. 2d 1191 , 1192 (Fla. 3d DCA 2007); see Gibson Tr., 883 So. 2d at 382 ; Coquina Beach Club Condo. Ass’n v. Wagner, 813 So. 2d 1061 , 1063 (Fla. 2d DCA 2002). 1) Excusable neglect In order to show excusable neglect, the moving party “must produce sufficient evidence of mistake, accident, excusable neglect or surprise as contemplated by rule 1.540(b) before the court’s equity jurisdiction may be invoked.” Bank of New York Mellon v. Peterson, 208 So. 3d 1218 , 1222 (Fla. 2d DCA 2017) (quoting Rude v. Golden Crown Land Dev. Corp., 521 So. 2d 351 , 353 (Fla. 2d DCA 1988)) (emphasis added). If the movant fails to present evidence supporting a legal ground for relief from the judgment, it is an abuse of the trial court’s discretion to vacate that judgment. Id.; see also Westinghouse Elevator, 438 So. 2d at 126 (holding that “when a movant relies upon a factual defense, he must properly set forth the facts relied upon to establish such a defense and a general denial is not sufficient. It is not permissible to allege that a defaulting party’s negligence is excusable without setting forth the facts to support such a conclusion. Likewise, it is impermissible to allege that a meritorious defense exists without presenting ultimate facts to support that conclusion”). 5  In his motion to vacate the final judgment, Falcones offered as “excusable neglect” his general inability to respond to the complaint as a result of the onset of the Covid pandemic and “efforts made toward his business and for the safety of his family,” and “he was not able to attend to the matter at hand without taking time away from essential and potential life saving measures.” These general assertions may have been sufficient to vacate an interlocutory clerk’s default, but more is required when seeking to vacate a default final judgment. See Gibson Trust, 883 So. 2d at 382 (“Where a default judgment has been entered, mere conclusory assertions or general denials are insufficient without sufficient allegations of supporting ultimate fact); Mathews Corp. v. Green’s Pool Serv., 584 So. 2d 1006 , 1007 (Fla. 3d DCA 1990). Falcones’s pleadings do not provide any specific facts supporting a finding of excusable neglect for his failure to file a responsive pleading. 2) Due diligence Falcones asserts that his failure to respond to the complaint, or to timely respond to the default final judgment, was due to his inability to contact his attorney and because of business complications generated by the pandemic. The record shows that the New York and Florida courts were still open at the time Falcones’s answer was due, on February 24, 2020 (pre-quarantine). Also, Falcones was represented by Mr. Morales in other litigation at the time the complaint was filed. Falcones’s claim is further belied by the emails he sent to Rodriguez’s counsel and 6 to Rodriguez acknowledging the complaint, threatening to sue, and assuring Rodriguez that his attorneys would respond accordingly. Absent sufficient allegations of some exceptional circumstance explaining the delay, Falcones’s ten- week delay in filing a motion to vacate a default final judgment after receiving notice constitutes a lack of due diligence as a matter of law. See Hepburn v. All Am. Gen. Const. Corp., 954 So. 2d 1250 , 1252 (Fla. 4th DCA 2007) (reversing and remanding to reinstate the default final judgment, finding no competent substantial evidence in the record of some exceptional circumstances explaining the delay); Lazcar Int’l, 957 So. 2d at 1193 (finding no competent evidence of any circumstance, exceptional or not, explaining the delay); Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So. 2d 1329 , 1330 (Fla. 4th DCA 1978) (explaining “swift action must be taken upon first receiving knowledge of any default”). 3) Meritorious defense A meritorious defense must be asserted either by a pleading or in an affidavit, and a general denial is insufficient to demonstrate the existence of a meritorious defense. Schauer v. Coleman, 639 So. 2d 637 , 639 (Fla. 2d DCA 1994); Hill v. Murphy, 872 So. 2d 919 , 921 (Fla. 2d DCA 2003) (holding a conclusory assertion that a meritorious defense exists is insufficient). If a defendant is relying on a factual defense to obtain relief from a default judgment, the ultimate facts establishing the defense must be set forth in a verified answer, sworn motion, or affidavit, or by other 7 competent evidence. Westinghouse Elevator, 438 So. 2d at 126 –27; Geer v. Jacobsen, 880 So. 2d 717 , 721 (Fla. 2d DCA 2004). Here, Falcones’s pleadings make only general assertions unsupported by facts or law. Further, the trial court did not entertain any argument on the matter and made no findings that Falcones sufficiently demonstrated the existence of a legal defense. Conclusion The trial court made no oral findings during the hearing, or any written findings in its order, to support its legal conclusions that Falcones proved excusable neglect, due diligence, and meritorious defense. The record shows that the trial court did not entertain any argument at all from the parties regarding the required meritorious defense element of rule 1.540(b). Its resulting order cursorily recited rule 1.540(b)’s elements as its “findings.” See Rivera v. Dep’t of Revenue ex rel. Rivera, 899 So. 2d 1265 , 1267 (Fla. 2d DCA 2005) (“We are not unmindful of the strong policy of liberality in vacating defaults. Nevertheless, . . . we hold that the court committed a gross abuse of discretion when it entered an order without any facts to support its decision.”) (emphasis added). As there are no facts in this record to support the trial court’s legal conclusions that Falcones demonstrated excusable neglect, due diligence, and the existence of a meritorious defense, we reverse and remand for the trial court to reinstate the default final judgment. Reversed and remanded. 8

2020-12-02 16:02:48.224908+00

https://www.3dca.flcourts.org/pre_opinion_content_download/692463

Third District Court of Appeal State of Florida Opinion filed December 2, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D20-532 Lower Tribunal No. 19F-04197 ________________ G.R., etc., Appellant, vs. Agency for Persons with Disabilities, etc., et al., Appellees. An Appeal from the State of Florida, Department of Children and Families, Office of Appeal Hearings. Manuel Ramirez, Legal Guardian for appellant, G.R. Jada Williams (Tallahassee), Senior Attorney, for appellee Agency for Persons with Disabilities. Before EMAS, C.J., and HENDON and MILLER, JJ. EMAS, C.J.  G.R. appeals from a final order of the Florida Department of Children and Families’ Office of Appeal Hearings, affirming a decision by the Agency for Persons with Disabilities (“the Agency”) to deny G.R.’s application for enrollment in a Medicare waiver program for persons with disabilities. We affirm. BACKGROUND AND PROCEEDINGS On February 1, 2019, forty-two-year-old G.R. applied through his legal guardian for enrollment in the Individual Budgeting Home and Community Based Services (“HCBS”) waiver, which provides funding for persons with specified developmental disabilities under section 393.063, Florida Statutes (2019). This was at least the third time G.R. had applied for such benefits, as he was denied benefits on the same basis in 2009 and 2012. The Agency again denied G.R.’s application, concluding that he was not eligible for the benefits because the documents submitted on G.R.’s behalf failed to establish he had one of the defined disabilities under section 393.063(24). G.R. sought review of this denial, asserting, inter alia, that the Agency failed to consider some of the relevant information pertaining to his intellectual disability. Following a review, the Department of Children and Families’ Office of Appeal Hearings issued a final order denying G.R.’s administrative appeal. This appeal followed. DISCUSSION AND ANALYSIS 2  We review an agency’s conclusions of law de novo and we review the record to determine whether competent substantial evidence supports the agency’s decision. A.C. v. Agency for Health Care Admin., 44 Fla. L. Weekly D2279 at *4 (Fla. 3d DCA 2019). In doing so, “we give no deference to agency interpretations of statutes or rules.” Id. (citing MB Doral, LLC v. Dep’t of Bus. & Prof’l Regulation, Div. of Alcoholic Beverages & Tobacco, 295 So. 3d 850 , 853 (Fla. 1st DCA 2020) (noting: “With the passage of article V, section 21 of the Florida Constitution, the previously afforded deference to the agency's interpretation of the statutes it implements has been abolished; our review is de novo.”)). See also M.T. v. Agency for Persons with Disabilities, 212 So. 3d 413 (Fla. 3d DCA 2016); A.W. v. Agency for Persons with Disabilities, 288 So. 3d 91 (Fla. 1st DCA 2019). “A petitioner whose application for benefits or payments is denied must establish her position ‘by a preponderance of the evidence, to the satisfaction of the hearing officer.’” A.W., 288 So. 3d 93 (quoting Fla. Admin. Code R. 65-2.060(1)). Chapter 393 of the Florida Statutes establishes the framework for providing benefits to individuals with developmental disabilities. To be eligible for such benefits, an individual must qualify as a statutorily defined individual with a “developmental disability.” Section 393.063(12) defines this term as “a disorder or syndrome that is attributable to intellectual disability . . . that manifests before the age of 18; and that 3 constitutes a substantial handicap that can reasonably be expected to continue indefinitely.” The term “intellectual disability” is further defined in section 393.063(24) to mean “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior which manifests before the age of 18 and can reasonably be expected to continue indefinitely.” See also Fla. Admin. Code R. 65G-4.014 and 65G-4.017 (further delineating eligibility requirements). Of note, a full scale IQ score of 70 or below on an individually administered intelligence test is considered an intellectual disability, but in assessing this score, the Agency may rely on clinical judgment “when there is a great deal of variability between IQ scores on different IQ tests or different administrations of the same IQ test.” Fla. Admin. Code R. 65G-4.017(3). The Agency denied G.R.’s application because it determined that he did not meet the requisite definition of an individual with an intellectual disability. Specifically, the Agency noted that there was no reliable record during G.R.’s developmental years consistent with an intellectual deficit. The hearing officer, on appeal, agreed, finding that none of the records provided support a finding of intellectual disability manifesting before the age of 18, and that all information regarding G.R.’s status prior to the age of 18 fails to reference any testing methods to support a diagnosis of “learning deficits” or “mental retardation,” facts which the 4 hearing officer nevertheless determined were contradicted by the fact that G.R. obtained a G.E.D., had average grades, and a teacher recommendation letter indicating he had “average intellectual capacity.” As indicated earlier, G.R. had the burden to establish his eligibility by a preponderance of the evidence. See M.T., 212 So. 3d at 415 ; Fla. Admin. Code R. 65-2.060(1)). Dr. Arias, who performed the evaluation of G.R. in 2012, testified that, at the time, G.R. was thirty-five years old. Dr. Arias diagnosed G.R. with paranoid schizophrenia and borderline intellectual function. For the intellectual testing, Dr. Arias used the Wechsler Adult Intelligent Scale Fourth Edition test, and G.R.’s full scale composite result was an IQ of 57. However, Dr. Arias testified that G.R.’s reasoning index was the best indicator of his intellectual capacity, and that this put him at borderline intellectual levels, not an intellectual disability. He believed that some of the lower scores on the subsections of the test were attributable to G.R.’s mental illness. Dr. Arias reached the same conclusion when he again reviewed the more recent relevant documentation prior to the hearing. G.R. contends that the hearing officer did not consider the full-scale IQ score of 57 conducted by Dr. Arias in 2012, using the WAIS-IV method, a presumptively valid test under Florida Administrative Code Rule 65G-4.017. But Dr. Arias himself, in the test report, indicated that a score of 75 was “the best estimate of his current functioning.” G.R. counters that Dr. Arias’ opinion in this regard should be 5 disregarded and only the overall score of 57 should have been deemed relevant to the hearing officer’s determination. We do not agree with G.R.’s contentions and, as a careful review of the record and order reveals, the hearing officer properly considered all the competent evidence it was presented with, including Dr. Arias’ report. In doing so, the court found credible Dr. Arias’ testimony that G.R. really has an IQ of about 75, despite the full-scale score of 57. That conclusion is supported by competent substantial evidence, and no error was committed by the hearing officer in arriving at this conclusion. The other documents submitted by G.R. were either not presumptively valid under Rule 65G-4.017, or did not properly diagnose G.R. with an intellectual disability that manifested before the age of eighteen, as required by section 393.063. 1 1 We reject G.R’s argument that our prior decision in M.T. v. Agency for Persons with Disabilities, 212 So. 3d 413 (Fla. 3d DCA 2016) compels reversal. In that case, M.T. provided certain records from within M.T.’s developmental years demonstrating M.T. had an intellectual disability that manifested before age eighteen. Nevertheless, the Agency argued (and the hearing officer found) that the statutory definition of “intellectual disability” required the applicant to provide an IQ test administered before the age of eighteen. While M.T. presented other records to establish his intellectual disability within the meaning of the statute, the Agency denied M.T.’s application in the absence of the requisite IQ test. We reversed, and held that the Agency erred in requiring an applicant to provide proof of an IQ test administered before the applicant turns eighteen. Instead, an IQ test is simply one way in which an applicant can meet the definition for intellectual disability and establish eligibility for the HCBS Waiver program. In the instant case, by contrast, G.R. had neither a qualifying IQ test nor any other evidence found sufficiently reliable or credible to support G.R.’s claim of an intellectual disability manifesting before the age of eighteen. 6 The hearing officer’s determinations in this regard were also supported by competent substantial evidence, and provide no basis for reversal. To the extent G.R. provided some documents or other evidence in an effort to meet his burden or to overcome the evidence presented by the Agency, the hearing officer properly weighed the evidence presented, made credibility determinations as necessary, and made findings supported by competent substantial evidence. We find no error in these determinations or in the final order on appeal. Affirmed. 7

2020-12-02 16:00:14.778498+00

http://www.ca2.uscourts.gov/decisions/isysquery/885328ea-a01a-40a2-91b3-64a0341e4251/7/doc/19-3560_so.pdf

19-3560 United States of America v. Castelle 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 “SUMMARY 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 2nd day of December, two thousand twenty. PRESENT: ROBERT D. SACK, RICHARD J. SULLIVAN, STEVEN J. MENASHI, Circuit Judges. _____________________________________ United States of America, Appellee, v. 19-3560 Eugene Castelle, AKA Boobsie, Defendant-Appellant. * * The Clerk of Court is respectfully directed to amend the caption as reflected above. For Appellant: JACOB FIDDELMAN, (Hagan Scotten and Karl N. Metzner, on the brief), Assistant United States Attorneys, for Audrey Strauss, Acting United States Attorney for the Southern District of New York, NY. For Appellees: RICHARD WARE LEVITT, Levitt & Kaizer, New York, NY. Appeal from the United States District Court for the Southern District of New York (Alvin Hellerstein, Judge). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the district court’s judgment is AFFIRMED. Defendant Eugene Castelle appeals his conviction and sentencing, which were entered after a jury found him guilty on charges of participating in an illegal gambling business, in violation of 18 U.S.C. §§ 1955 and 2, and RICO conspiracy, in violation of 18 U.S.C. § 1962(d). Castelle challenges several of the district court’s evidentiary rulings and jury instructions at trial, as well as the sufficiency of the evidence on the RICO conspiracy charge and the district court’s factual findings in support of a Guidelines enhancement at sentencing. We assume the 2 parties’ familiarity with the underlying facts, procedural history, and issues on appeal. Discussion I. Special Agent John Carillo’s Expert Testimony Castelle contends that the expert testimony provided by Special Agent John Carillo violated both the Federal Rules of Evidence and the Constitution’s Confrontation Clause. For the first time on appeal, he also argues that some of the testimony amounted to improper bolstering of fact witnesses. “We review evidentiary rulings for abuse of the district court’s broad discretion, reversing only when the court has acted arbitrarily or irrationally.” United States v. Nektalov, 461 F.3d 309 , 318 (2d Cir. 2006) (internal quotation marks omitted). “Because it is a question of law whether an expert witness’s testimony violated [the Confrontation Clause], our review is de novo.” United States v. Mejia, 545 F.3d 179 , 198–99 (2d Cir. 2008). Issues raised for the first time on appeal are subject to plain error review. United States v. Marcus, 560 U.S. 258 , 262 (2010). Under Rule 702, an expert may testify about “scientific, technical, or other specialized knowledge [that] will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702(a). Expert testimony should 3 not merely summarize the case’s facts, and must avoid communicating “out-of- court testimonial statements of cooperating witnesses and confidential informants directly to the jury in the guise of an expert opinion.” Mejia, 545 F.3d at 198 (internal quotation marks omitted). Expert testimony likewise may not be “used exclusively to bolster the government witnesses’ versions of the events.” United States v. Amuso, 21 F.3d 1251 , 1263 (2d Cir. 1994). Reviewed under this legal framework, none of the testimony challenged by Castelle requires reversal. To start, Agent Carillo’s testimony concerning the types of crimes committed by the Lucchese Family, as well as the Lucchese Family’s structure and operational methods, did nothing more than provide jurors with the kind of general background information that we have permitted in the past. See United States v. Locascio, 6 F.3d 924 , 937 (2d Cir. 1993) (holding that expert testimony on “the structure and operations of organized crime families” was properly admitted); Amuso, 21 F.3d at 1263 –64 (permitting testimony on organization’s terminology and structure because “the operational methods of organized crime families are still beyond the knowledge of the average citizen”). Nor was it problematic that Agent Carillo’s knowledge was partly informed by otherwise inadmissible hearsay, as Castelle has not shown that Agent Carillo 4 “communicated out-of-court testimonial statements of cooperating witnesses and confidential informants directly to the jury in the guise of an expert opinion.” United States v. Lombardozzi, 491 F.3d 61 , 72 (2d Cir. 2007). Castelle likewise fails to establish that Agent Carillo’s expert testimony merely bolstered and mirrored testimony of fact witnesses. Indeed, Castelle’s lead example of bolstering shows no such thing; it was not improper for Agent Carillo to testify as an expert about surveilling Lucchese Family members at social clubs and wakes, while also testifying as a fact witness concerning Castelle’s attendance at social clubs and wakes with other Lucchese Family members. See Amuso, 21 F.3d at 1264 (explaining that some overlap in testimony is permitted). Finally, even if it could be argued that the district court erroneously permitted Agent Carillo to testify as an expert, any error here was harmless given the overwhelming evidence – including recorded phone calls and photographs – establishing that Castelle was a made member of the crime family who committed the offenses charged. II. Evidence of Pennisi’s Conviction and Domestic Violence Castelle next argues that the district court abused its discretion by precluding cross-examination of cooperating witness John Pennisi on his 5 manslaughter conviction from 1990 and his assault on his girlfriend after he discovered that she had an affair with Castelle. Neither is grounds for reversal. Just as the district court properly excluded the manslaughter conviction, which was more than ten years old and of limited probative value that did not “substantially outweigh[] its prejudicial effect,” Fed. R. Evid. 609(b)(1), so too was the district court justified in excluding evidence concerning Pennisi’s assault on his girlfriend after he learned of her affair with Castelle. Although Castelle argues that such evidence was relevant to show the intensity of Pennisi’s jealousy and his strong motive to testify falsely against Castelle, the district court did not err in determining that cross-examination concerning the violence of Pennisi’s initial reaction to the affair – which occurred nearly three years before trial and was directed against his girlfriend – had little relevance to determining whether Pennisi harbored contemporaneous bias and hostility against Castelle at the time of Pennisi’s trial testimony. Given the highly prejudicial nature of the assault, in which Pennisi apparently knocked out his girlfriend’s teeth, the district court did not abuse its discretion in determining that the testimony was of limited probative value and would be highly prejudicial. 6  Importantly, the district court permitted defense counsel to cross-examine Pennisi regarding the fact of the affair and his strong bias and hostility toward Castelle. The jury heard Pennisi admit to being “[v]ery angry” about Castelle’s relationship with Pennisi’s girlfriend, to disliking Castelle’s character and personality, and to previously lying under oath. Suppl. App’x at 258, 267. The jury therefore had ample basis “to make a discriminating appraisal of the particular witness’s possible motives for testifying falsely in favor of the government.” United States v. Flaharty, 295 F.3d 182 , 191 (2d Cir. 2002) (internal quotation marks omitted). Given the deference accorded to trial judges under Rule 403, we cannot say that the district court abused its discretion in precluding cross examination on Pennisi’s prior acts of violence. See United States v. Coppola, 671 F.3d 220 , 244 (2d Cir. 2012) (noting that, in the Rule 403 context, our review “is highly deferential in recognition of the district court’s superior position to assess relevancy and to weigh the probative value of evidence against its potential for unfair prejudice” (internal quotation marks omitted)). III. Jury Instruction on Illegal Gambling Castelle also contends, for the first time on appeal, that the district court plainly erred in its instructions on the illegal gambling count when it failed to tell 7 the jurors “that they must unanimously agree that five or more persons participated” simultaneously in the illegal scheme at some point during the life of the conspiracy. Appellant’s Brief at 62. We disagree. Using language taken directly from the leading treatise on the subject, to which Castelle did not object, the district court instructed the jury that “[f]ive or more people . . . must have participated during the period you found that the gambling business was in substantially continuous operation.” Suppl. App’x at 383 (quoting Leonard B. Sand et al., Modern Federal Jury Instructions: Criminal, Instr. 39-27 (2019)). While Castelle now insists that this instruction should have specified that five or more people must have participated in the criminal scheme at the same time, we need not decide that issue because the evidence introduced at trial clearly established that at least five individuals – Castelle, Grecco, Riotto, Vasilakis, and Zuccarello – simultaneously worked in the gambling business. See, e.g., Suppl. App’x at 159, 161, 163, 274, and 559–569. Given the uncontroverted evidence, Castelle has not demonstrated that the allegedly erroneous jury 8 instruction “affected the outcome of the district court proceedings,” and thus has not satisfied the plain error standard. Marcus, 560 U.S. at 262 . Castelle has also failed to establish any plain error in the district court’s unanimity instruction. Although the court did not specifically charge the jury that it must agree on the number of participants, the court did provide a general unanimity instruction, which was clearly sufficient under the circumstances. See United States v. Shaoul, 41 F.3d 811 , 818 (2d Cir. 1994) (“Even in circumstances where it might have been advisable . . . to give specific unanimity instructions, we have held that failure to give such instructions does not constitute plain error.” (internal quotation marks and footnote omitted)). IV. Sufficiency of the Evidence Supporting the RICO Conspiracy Castelle further argues that there was insufficient evidence to support his RICO conspiracy conviction. We again disagree. We review de novo the district court’s conclusion that sufficient evidence supported a conviction, viewing “the evidence presented in the light most favorable to the government” and drawing “all reasonable inferences in its favor.” United States v. Autuori, 212 F.3d 105 , 114 (2d Cir. 2000). “[W]e will not disturb a conviction on grounds of legal insufficiency of the evidence at trial if any rational 9 trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Pimentel, 346 F.3d 285 , 295 (2d Cir. 2003) (internal quotation marks omitted). Where, as here, a defendant raises a sufficiency-of-evidence challenge to a general verdict finding him guilty of a racketeering conspiracy, we must affirm the conviction if sufficient evidence established that the conspiracy involved two of the charged racketeering predicates. See id. at 297; 18 U.S.C. §§ 1961(5) (requiring two predicate acts), 1962(d). Here, the evidence adduced at trial was more than sufficient to establish that the conspiracy involved the predicate act of illegal gambling in violation of New York State Penal Law § 225.10 – which Castelle does not contest. In addition, as discussed above, the evidence also demonstrated the separate predicate act of participating in an illegal gambling business in violation of 18 U.S.C. § 1955, since the gambling business in question involved five or more people. There was also enough evidence for a jury to conclude that Castelle conspired to knowingly using a wire communication to transmit gambling information in interstate or foreign commerce. See 18 U.S.C. § 1084(a). Section 1084 requires proof that a defendant “knew or could reasonably foresee” that 10 interstate or foreign wire communications would be used to facilitate the criminal enterprise. See United States v. Barone, 467 F.2d 247 , 249 (2d Cir. 1972). Here, the evidence showed that bookmaker Anthony Grecco and others partly ran their gambling business through a website hosted in Costa Rica. The evidence likewise demonstrated that Castelle was involved in the betting process and often directed Grecco to set up new betting accounts. In one recorded phone call, Grecco informed Castelle that they had been “shut off” for not making a payment, Suppl. App’x 573, which supported the reasonable inference that Castelle understood the nature of the operation and the fact that it was utilizing websites hosted outside the State of New York. Cf. United States v. Muni, 668 F.2d 87 , 90 (2d Cir. 1981) (“The content of reasonable foreseeability must inevitably keep pace with advances in technology and general awareness of such advances.”). The government also introduced sufficient evidence to support a finding that Castelle conspired to commit mail and wire fraud, in violation of 18 U.S.C. §§ 1341 and 1342. While “we have repeatedly rejected application of the mail and wire fraud statutes where the purported victim received the full economic benefit of its bargain,” we have upheld convictions “where the deceit affected the victim’s economic calculus or the benefits and burdens of the agreement,” as well as 11 “where defendants’ misrepresentations pertained to the quality of services bargained for.” United States v. Binday, 804 F.3d 558 , 570–71 (2d Cir. 2015). Here, it is undisputed that Castelle arranged with ACDM Construction to have a no- show construction job. ACDM, in turn, submitted regular timesheets to prime contractor Del-Sano Contracting, falsely reporting that Castelle worked about 170 days at the construction site. Castelle argues that Del-Sano nevertheless got what it bargained for because the contract provided for a fixed price that did not depend on who was working at the construction site. But the no-show job was hardly immaterial, as underscored by the fact that timesheets were routinely submitted by ACDM and reviewed by Del-Sano, whose project superintendent expressed concern that “things are not going as scheduled.” Suppl. App’x at 575. Clearly, the economic calculus, benefits, and quality of services provided to Del-Sano were detrimentally affected by the fraud. Binday, 804 F.3d at 570 –71. V. Evidence Supporting the Extortion Enhancement at Sentencing Finally, Castelle argues that the district court improperly inflated his Sentencing Guidelines range when it erroneously concluded that he extorted money from Anthony Grecco. We disagree and find that the district court was 12 justified in treating Castelle’s extortion of Grecco as relevant conduct at sentencing. Extortion is “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear.” 18 U.S.C. § 1951(b)(2). “[W]here an organized crime enterprise cultivates a reputation for violence and intimidation in achieving its conspiratorial goal of control throughout an industry or area,” the fact finder “may reasonably consider that reputation in assessing whether payments were induced by the exploitation of existing fear without an explicit or implicit threat.” Coppola, 671 F.3d at 242 . The evidence before the district court established that Castelle extorted money from Grecco by utilizing his tight connection with the Lucchese Family, which had a reputation for using violence to ensure that people paid their debts. For starters, as Grecco explained in a recorded phone call, he “had no choice” in using Castelle’s protection services because the crime family had chosen Castelle to be Grecco’s “partner.” Suppl. App’x at 517. Although Castelle did almost nothing to advance the so-called partnership, he nevertheless demanded that Grecco pay significant sums of money – including $15,000 to oust Grecco’s former “partner,” 25% of Grecco’s gambling profits, a $40,000 loan for Castelle’s benefit 13 that Grecco had to repay, and yearly tribute money. And while Castelle insists that his arrangement with Grecco was ultimately an improvement over the terms imposed by his prior extortionate “partner,” the relative burdens of the two extortions are of no moment. But for the implicit threat of violence that permeated the relationship, Grecco made clear that he would have chosen “to get rid of this guy.” Id. at 517. Indeed, once it became apparent that Castelle “was in trouble” and no longer had the support of the Lucchese Family, Grecco remarked that he would “get rid of [Castelle] right away and end it.” App’x at 151–52. Based on the evidence in the record, we cannot say that the district court erred in finding that Castelle extorted Grecco. Conclusion We have considered Castelle’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the district court’s judgment. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court 14

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19-3202 Torres v. The Blackstone Group 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 “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals for the Second Circuit, held at 2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 3 on the 2nd day of December, two thousand twenty. 4 5 PRESENT: 6 JOHN M. WALKER, JR., 7 ROBERT A. KATZMANN, 8 RICHARD C. WESLEY, 9 Circuit Judges. 10 _____________________________________ 11 12 Wilfredo Torres, 13 14 Plaintiff-Appellant, 15 16 v. 19-3202 17 18 The Blackstone Group, 19 20 Defendant-Appellee. 21 22 _____________________________________ 23 24 25 FOR PLAINTIFF-APPELLANT: Wilfredo Torres, pro se, 26 New York, NY 27 28 FOR DEFENDANT-APPELLEE: Paul Coppe, Dean Dreiblatt, 29 Rose & Rose, New York, 30 NY. 31  1 Appeal from a judgment of the United States District Court for the Southern District of 2 New York (Abrams, J.). 3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 4 DECREED that the judgment of the district court is AFFIRMED. 5 Appellant Wilfredo Torres, proceeding pro se, appeals the district court’s judgment 6 dismissing his complaint against The Blackstone Group (“Blackstone”) without leave to amend. 7 Torres sued Blackstone, alleging that Blackstone owned his apartment complex and had taken 8 various actions to interfere with Torres’s pursuit of a separate lawsuit. The district court construed 9 the pleadings as raising due process claims under 42 U.S.C. § 1983; violations of two criminal 10 statutes, 18 U.S.C. § 1512 and 18 U.S.C. § 1708; and state law claims. The district court dismissed 11 the due process claim for failure to state a claim, dismissed the criminal law claims for lack of 12 subject matter jurisdiction, and declined to exercise supplemental jurisdiction over the state law 13 claims. It further denied leave to amend as futile. This appeal followed. We assume the parties’ 14 familiarity with the underlying facts, the procedural history, and the issues on appeal. 15 Because Mr. Torres has failed to raise and thus waived any argument relevant to the district 16 court’s dismissal of his case on appeal, we affirm the judgement. Although “we liberally construe 17 pleadings and briefs submitted by pro se litigants, reading such submissions to raise the strongest 18 arguments they suggest,” McLeod v. Jewish Guild for the Blind, 864 F.3d 154 , 156 (2d Cir. 19 2017) (per curiam), 1 pro se appellants nonetheless must comply with Fed. R. App. P. 28(a), which 1 Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, emphases, footnotes, and citations are omitted. 2  1 requires, inter alia, “appellants in their briefs to provide the court with a clear statement of the 2 issues on appeal,” Moates v. Barkley, 147 F.3d 207 , 209 (2d Cir. 1998) (per curiam). Thus, despite 3 affording pro se litigants “some latitude in meeting the rules governing litigation, . . . we need not, 4 and normally will not, decide issues that a party fails to raise in his or her appellate brief.” Id.; see 5 also LoSacco v. City of Middletown, 71 F.3d 88 , 93 (2d Cir. 1995) (“[W]e need not manufacture 6 claims of error for an appellant proceeding pro se . . . .”). 7 Here, Mr. Torres’s brief does not comply with Fed. R. App. P. 28(a) in several respects, 8 and, rather than challenging the merits of the district court’s dismissal, largely reiterates the factual 9 allegations contained in his district-court filings. Even construed liberally, the brief mentions the 10 merits of his due-process claim only “obliquely and in passing,” and does not refer at all to the 11 jurisdictional basis for his witness-intimidation and mail-fraud claims. Gerstenbluth v. Credit 12 Suisse Sec. (USA) LLC, 728 F.3d 139 , 142 n.4 (2d Cir. 2013). We thus find that Mr. Torres has 13 waived any challenge to the merits of the district court’s dismissal on appeal. See id. We also reject 14 Mr. Torres’s argument, raised for the first time on appeal, that the district judge had a conflict of 15 interest. We find no support for this contention in the record and, in any event, generally do not 16 consider arguments raised for the first time on appeal. See Libertarian Party of Conn. v. Lamont, 17 977 F.3d 173 , 181 n.3 (2d Cir. 2020). 18 We have considered Torres’s remaining arguments and find them to be without merit. 19 Accordingly, we AFFIRM the judgment of the district court. 20 21 FOR THE COURT: 22 Catherine O=Hagan Wolfe, Clerk of Court 3

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20-1503-cv Servipronto De El Salvador, S.A. v. McDonald's Corporation 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 "SUMMARY ORDER"). A PARTY CITING 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 2nd day of December, two thousand twenty. PRESENT: DENNY CHIN, RAYMOND J. LOHIER, JR., MICHAEL H. PARK, Circuit Judges. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x SERVIPRONTO DE EL SALVADOR, S.A., Plaintiff-Appellant, -v- 20-1503-cv MCDONALD'S CORPORATION, Defendant-Appellee. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x FOR PLAINTIFF-APPELLANT: FRANCISCO A. RODRIGUEZ (Steven M. Cordero, on the brief), Akerman LLP, Miami, Florida, and New York, New York. FOR DEFENDANT-APPELLEE: JONATHAN C. BUNGE (Ryan McCartney, Margaret Haas, on the brief), Quinn Emanuel Urquhart & Sullivan, LLP, Chicago, Illinois. Appeal from the United States District Court for the Southern District of New York (Failla, J.). UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Plaintiff-appellant Servipronto De El Salvador, S.A. ("Servipronto") appeals from the district court's judgment, entered April 8, 2020, in favor of defendant- appellee McDonald's Corporation ("McDonald's"). By opinion and order entered April 6, 2020, the district court granted McDonald's motion to dismiss and denied Servipronto's motion for summary judgment. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. This action stems from a December 6, 2005 judgment entered by the Second Civil Court of El Salvador in favor of Servipronto for $23,977,493.40 (the "principal amount"). The judgment did not include any pre-judgment or post-judgment -2- interest. Servipronto argues that it is entitled to post-judgment interest on the principal amount for the period from December 6, 2005 through September 11, 2019. 1 McDonald's appealed the judgment through the Salvadoran court system between 2006 and 2012. On September 4, 2012, after having exhausted its appeals, McDonald's deposited the principal amount into the Treasury Department of El Salvador. The funds were not immediately released to Servipronto, and it brought proceedings in El Salvador seeking release of the funds as well as the payment of interest. The Second Civil Chamber of the First Section in El Salvador held that Servipronto was not entitled to post-judgment interest because of Servipronto's failure to make a timely request. Following affirmance by the Second Court in Civil Matters of the First Section in El Salvador on March 16, 2017 and by the Second Civil Chamber in El Salvador on August 21, 2019, the First Mercantile Court ordered that the principal amount previously deposited by McDonald's be released to Servipronto. Servipronto collected the principal amount on September 11, 2019. On October 23, 2019, the Salvadoran litigation closed. On June 1, 2011, Servipronto initiated this action in the New York State Supreme Court, New York County, pursuant to New York’s Uniform Foreign Country Money-Judgments Recognition Act, Article 53 of New York’s Civil Practice Law and 1Servipronto argues that it would be entitled to $39,627,891.27 in interest if El Salvador's twelve percent interest rate applies, or $29,720,880.75 if New York's nine percent interest rate applies. -3- Rules ("Article 53"), seeking payment of the principal amount in addition to a payment of post-judgment interest. Defendant removed the action to the district court on July 1, 2011. The proceedings were for the most part stayed until October 2019 while the litigation in El Salvador was pending, after which Servipronto filed its motion for summary judgment and McDonald's filed its motion to dismiss. On April 6, 2020, the district court ruled in favor of McDonald's, concluding that the case was moot in light of the proceedings in El Salvador. "We review the district court's grant of a motion to dismiss de novo, but may affirm on any basis supported by the record." Coulter v. Morgan Stanley & Co. Inc., 753 F.3d 361 , 366 (2d Cir. 2014) (per curiam) (citing Scott v. Fischer, 616 F.3d 100 , 105 (2d Cir. 2010)). We also apply de novo review in considering the enforcement of foreign judgments. See Diorinou v. Mezitis, 237 F.3d 133 , 140 (2d Cir. 2001). New York law governs actions brought in the State of New York to enforce judgments from foreign countries. See Island Territory of Curacao v. Solitron Devices, Inc., 489 F.2d 1313 , 1318 (2d Cir. 1973). Article 53 grants judicial recognition to "any judgment of a foreign state granting or denying recovery of a sum of money," N.Y. C.P.L.R. § 5301(b), where such judgments are "final, conclusive and enforceable where rendered even though an appeal therefrom is pending or it is subject to appeal," N.Y. C.P.L.R. § 5302. Article 53 further provides that except for specific grounds for non- recognition as enumerated in section 5304, "a foreign country judgment meeting the -4- requirements of section 5302 is conclusive between the parties to the extent that it grants or denies recovery of a sum of money." N.Y. C.P.L.R. § 5303. Article 53 "was designed to promote the efficient enforcement of New York judgments abroad by assuring foreign jurisdictions that their judgments would receive streamlined enforcement in New York." Chevron Corp. v. Naranjo, 667 F.3d 232 , 241 (2d Cir. 2012) (internal quotation marks omitted). "New York courts have accorded recognition to the judgments rendered in a foreign country under the doctrine of comity absent some showing of fraud in the procurement of the foreign country judgment or that recognition of the judgment would do violence to some strong public policy of [New York State]." Sung Hwan Co. v. Rite Aid Corp., 7 N.Y.3d 78 , 82 (2006) (internal quotation marks and alteration omitted). Therefore, "[g]enerally speaking, if the foreign country money judgment meets [Article 53's] conditions, it is conclusive and entitled to recognition." Lenchyshyn v. Pelko Elec., Inc., 723 N.Y.S.2d 285 , 288 (4th Dep't 2001) (internal quotation marks omitted). Here, several courts in El Salvador -- the Second Civil Chamber of the First Section of the Center of El Salvador, the Second Court in Civil Matters of the First Section of the Center of El Salvador, and the Second Civil Chamber of the First Circuit of the Center of El Salvador -- concluded that Servipronto is not entitled to interest on the principal amount. Servipronto itself concedes that Salvadoran courts have denied Servipronto's application for post-judgment interest on procedural grounds but argues -5- that it still has a viable claim for interest payment, pointing to the March 16, 2017 opinion of the Second Court in Civil Matters of the First Section of the Center of El Salvador (the "Second Court"), which acknowledged Servipronto's right to an interest payment. In the same opinion, however, that court ultimately held that Servipronto was procedurally barred from seeking an interest payment, and on August 21, 2019, the Second Civil Chamber of the First Circuit of the Center of El Salvador held that Servipronto's claim for interest "lacks a legal basis." S. App'x at 550. While a party seeking to domesticate an unsatisfied foreign judgment under Article 53 may be entitled to an award of interest payment by New York courts, see, e.g., Abu Dhabi Com. Bank PJSC v. Saad Trading, Contracting & Fin. Servs. Co., 986 N.Y.S.2d 454 , 458–59 (1st Dep't 2014), here, the judgment awarding Servipronto the principal amount was indisputably satisfied in El Salvador and Salvadoran courts conclusively held that Servipronto is not entitled to interest payment, and under those circumstances Article 53 does not permit a separate claim for interest. If we were to now award interest, we would be contravening the principles of comity that Article 53 set out to codify. See Sung Hwan Co., 7 N.Y.3d at 82 ; accord Byblos Bank Europe, S.A. v. Sekerbank Turk Anonym Syrketi, 10 N.Y.3d 243 , 247 (2008) ("The doctrine of comity refers to the spirit of cooperation in which a domestic tribunal approaches the resolution of cases touching the laws and interests of other sovereign states.") (internal quotation marks omitted); Lenchyshyn, 723 N.Y.S.2d at 289 ("[A]s a general matter we of course -6- would accord a[] [foreign] judgment the same recognition as a sister state judgment, albeit as a matter of international comity rather than constitutional imperative."); S.B. v. W.A., 959 N.Y.S.2d 802 , 821 (Sup. Ct. 2012), aff'd sub nom. Badawi v. Wael Mounir Alesawy, 24 N.Y.S.3d 683 (2d Dep't 2016) (Even where foreign state laws "may be more expansive than the laws of New York, [New York courts are] not precluded from recognizing and entering the judgment under the doctrine of comity."); Greschler v. Greschler, 51 N.Y.2d 368 , 376 (1980) ("Although not required to do so, the courts of this State generally will accord recognition to the judgments rendered in a foreign country under the doctrine of comity."). This Court has previously recognized the significance of deference to foreign court judgments as a "matter of comity." Diorinou, 237 F.3d at 142-43 (2d Cir. 2001) (citing authorities); see also Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146 , 160 (2d Cir. 2005) (dismissal of domestic case in light of foreign judgment could be supported "on grounds of international comity"); Victrix S.S. Co., S.A. v. Salen Dry Cargo A.B., 825 F.2d 709 , 713 (2d Cir. 1987) (courts in the United States have recognized the need to extend comity to foreign proceedings). In addition, applying New York choice-of-law rules, Salvadoran law on res judicata controls. Therefore, we look to Salvadoran res judicata principles. See Watts v. Swiss Bank Corp., 27 N.Y.2d 270 , 275 (1970) ("[T]he law of the rendering jurisdiction, insofar as it limits the effect of its own judgments, would also limit elsewhere the -7- preclusive effect of the judgment and the definition of the parties bound."); accord Schoenbrod v. Siegler, 20 N.Y.2d 403 , 409 (1967) (applying Mexican res judicata principles to determine preclusive effect of Mexican divorce decree); Voreep v. Tarom Romanian Air Transp., 1999 WL 311811 , at *4 (applying Romanian res judicata principles to determine preclusive effect of Romanian judgment). The Second Court in Civil Matters of the First Section of the Center of El Salvador held that the principle of res judicata barred Servipronto's claim for post- judgment interest, noting that it could not "assess new elements of debate" because doing so "would be as renewing the instance of a closed trial that has already passed through the authority of res judicata." S. App'x at 481. In sum, the question of whether Servipronto is entitled to post-judgment interest has been resolved by Salvadoran courts and we see no reason to reject or disturb the foreign judgment in light of the aforementioned principles of comity and res judicata. * * * We have considered Servipronto's remaining arguments and conclude they are without merit. For the foregoing reasons, we AFFIRM the judgment of the district court. FOR THE COURT: Catherine O'Hagan Wolfe, Clerk -8-

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18-2127 Ravi v. Barr BIA Hom, IJ A205 941 618 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 “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 2nd day of December, two thousand twenty. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Chief Judge, 9 PIERRE N. LEVAL, 10 RICHARD J. SULLIVAN, 11 Circuit Judges. 12 _____________________________________ 13 14 RAVI, AKA RAVI KUMAR, 15 Petitioner, 16 17 v. 18-2127 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Jaspreet Singh, Esq., Jackson 25 Heights, NY. 26 27 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 28 Attorney General; Edward E. 29 Wiggers, Senior Litigation 30 Counsel, Nicole J. Thomas-Dorris, 31 Trial Attorney, Office of 32 Immigration Litigation, United 33  1 States Department of Justice, 2 Washington, DC. 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Petitioner Ravi, also known as Ravi Kumar, a native and 9 citizen of India, seeks review of a June 25, 2018 decision of 10 the BIA affirming a July 28, 2017 decision of an Immigration 11 Judge (“IJ”) denying asylum, withholding of removal, and 12 relief under the Convention Against Torture (“CAT”). In re 13 Ravi Kumar, No. A205 941 618 (B.I.A. June 25, 2018), aff’g 14 No. A205 941 618 (Immig. Ct. N.Y.C. July 28, 2017). We assume 15 the parties’ familiarity with the underlying facts and 16 procedural history. 17 Under the circumstances of this case, we have reviewed 18 both the IJ’s and BIA’s decisions. Wangchuck v. Dep’t of 19 Homeland Sec., 448 F.3d 524 , 528 (2d Cir. 2006). We review 20 the agency’s factual findings under the substantial evidence 21 standard, treating them as “conclusive unless any reasonable 22 adjudicator would be compelled to conclude to the contrary.” 23 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 24 F.3d 90 , 95 (2d Cir. 2008). “We review de novo questions of 2  1 law and the application of law to undisputed fact.” 2 Salimatou Bah v. Mukasey, 529 F.3d 99 , 110 (2d Cir. 2008). 3 To establish asylum eligibility, an applicant must show 4 that he has suffered past persecution, or has a well-founded 5 fear of future persecution, “on account of race, religion, 6 nationality, membership in a particular social group, or 7 political opinion.” 8 U.S.C. § 1101(a)(42). If the 8 applicant is found to have suffered past persecution, he is 9 presumed to have a well-founded fear of future persecution on 10 the basis of the original claim. 8 C.F.R. § 1208.13(b)(1). 11 I. Past Persecution 12 “[P]ersecution is ‘an extreme concept that does not 13 include every sort of treatment our society regards as 14 offensive.’” Mei Fun Wong v. Holder, 633 F.3d 64 , 72 (2d 15 Cir. 2011) (quoting Ai Feng Yuan v. U.S. Dep’t of Justice, 16 416 F.3d 192 , 198 (2d Cir. 2005)). Past persecution may 17 “encompass[] a variety of forms of adverse treatment, 18 including non-life-threatening violence and physical abuse,” 19 but the harm must be sufficiently severe, rising above 20 “mere harassment.” Ivanishvili v. U.S. Dep’t of Justice, 433 21 F.3d 332 , 341 (2d Cir. 2006) (internal quotation marks and 22 brackets omitted). “‘[T]he difference between harassment and 3  1 persecution is necessarily one of degree,’ . . . the degree 2 must be assessed with regard to the context in which the 3 mistreatment occurs.” Beskovic v. Gonzales, 467 F.3d 223 , 4 226 (2d Cir. 2006) (quoting Ivanishvili, 433 F.3d at 341 ). 5 In evaluating past persecution, the agency must consider the 6 harm suffered in the aggregate. Poradisova v. Gonzales, 420 7 F.3d 70 , 79–80 (2d Cir. 2005). 8 The agency did not err by determining that Ravi’s past 9 harm did not rise to the level of persecution. Ravi alleged 10 two incidents lasting five to seven minutes in which he was 11 slapped and then slapped and punched by three individuals 12 whom he believed were members of the Congress Party. He 13 contended that they targeted him because he was hanging 14 posters for his own party, the Indian National Lok Dal 15 (“INLD”). But although he stated that these incidents caused 16 “deep injuries,” he provided no description of them and did 17 not seek any treatment. We attach small importance to his 18 failure to seek treatment because he testified that he was 19 threatened with death if he sought treatment. Nonetheless, 20 speaking conclusorily of “deep injuries,” Ravi provided no 21 details. Accordingly, given the lack of specific evidence 22 of injury and the fact that the incidents did not occur in 4  1 the context of an arrest or detention, we find no error in 2 the agency’s conclusion that this harm did not rise to the 3 level of persecution. See Jian Qiu Liu v. Holder, 632 F.3d 4 820, 821–22 (2d Cir. 2011) (upholding agency’s conclusion 5 that applicant’s beating by family planning officials did not 6 rise to level of persecution where it occurred prior to 7 detention and applicant required no formal medical 8 attention); Beskovic, 467 F.3d at 226 (“The BIA must, 9 therefore, be keenly sensitive to the fact that a ‘minor 10 beating’ or, for that matter, any physical degradation 11 designed to cause pain, humiliation, or other suffering, may 12 rise to the level of persecution if it occurred in the context 13 of an arrest or detention on the basis of a protected 14 ground.”). 15 II. Fear of Future Persecution 16 Absent a finding of past persecution, an applicant may 17 establish asylum eligibility based on a fear of 18 future persecution, but the applicant must show that “he 19 subjectively fears persecution and establish that his fear is 20 objectively reasonable.” Ramsameachire v. Ashcroft, 357 F.3d 21 169, 178 (2d Cir. 2004). Although a fear may be objectively 22 reasonable “even if there is only a slight, though 5  1 discernible, chance of persecution,” Diallo v. INS, 232 F.3d 2 279, 284 (2d Cir. 2000), a fear is not objectively reasonable 3 if it lacks “solid support” in the record and is merely 4 “speculative at best,” Jian Xing Huang v. U.S. INS, 421 F.3d 5 125, 129 (2d Cir. 2005). To demonstrate a well-founded fear, 6 an applicant must show either a reasonable possibility that 7 he would be singled out for persecution or that the country 8 of removal has a pattern or practice of persecuting 9 individuals similarly situated to him. 8 C.F.R. 10 § 1208.13(b)(2)(iii). The agency did not err in determining 11 that Ravi failed to establish a well-founded fear of future 12 persecution because the country conditions evidence reported 13 general corruption and criminal activity by the Congress 14 Party, but identified attacks mainly against INLD leaders, 15 not members, and reflected that the police had intervened to 16 stop clashes between the parties during 2009 elections. 17 Ravi’s failure to meet his burden for asylum is also 18 dispositive of withholding of removal. See Lecaj v. Holder, 19 616 F.3d 111 , 119 (2d Cir. 2010). 20 III. Torture 21 Ravi’s CAT claim fails for the same reasons. The alleged 22 past harm did not rise to the level of torture. See 8 C.F.R. 6  1 § 1208.18(a)(2), (4) (defining torture as “extreme form of 2 cruel and inhuman treatment” that “does not include lesser 3 forms of cruel, inhuman or degrading treatment” and 4 requiring, in relevant part, “severe physical pain and 5 suffering” or “threat of imminent death”); Kyaw Zwar Tun v. 6 INS, 445 F.3d 554 , 567 (2d Cir. 2006) (“[T]orture requires 7 proof of something more severe than the kind of treatment 8 that would suffice to prove persecution”). And the country 9 conditions evidence discusses general corruption and crime or 10 attacks against party leaders and thus does not show that 11 someone in Ravi’s particular circumstances faces a likelihood 12 of torture. See Jian Xing Huang, 421 F.3d at 129 ; Mu Xiang 13 Lin v. U.S. Dep’t of Justice, 432 F.3d 156 , 160 (2d Cir. 2005) 14 (requiring “particularized evidence” beyond general country 15 conditions to support a CAT claim). 16 For the foregoing reasons, the petition for review is 17 DENIED. All pending motions and applications are DENIED and 18 stays VACATED. 19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, 21 Clerk of Court 7

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19-3624-cv Petronio v. Nat’l R.R. Passenger Corp. 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 “SUMMARY ORDER”). A PARTY CITING 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 2nd day of December, two thousand twenty. Present: JON O. NEWMAN, ROSEMARY S. POOLER, 1 Circuit Judges. _____________________________________________________ STEVEN PETRONIO, Plaintiff-Appellant, v. 19-3624-cv NATIONAL RAILROAD PASSENGER CORPORATION, STEVEN JOHN COLLINS, Defendants-Appellees. _____________________________________________________ Appearing for Appellant: Stephen J. Fitzgerald, Garrison, Levin-Epstein, Fitzgerald & Pirrotti, P.C., New Haven, CT. Charles C. Goetsch, New Haven, CT (on the brief). Appearing for Appellee: William G. Ballaine, Landman Corsi Ballaine & Ford P.C. (Sophia Ree, Edumin Corrales, on the brief), New York, N.Y. 1 Circuit Judge Peter W. Hall, originally a member of the panel, is currently unavailable, and the appeal is being adjudicated by the two available members of the panel, who are in agreement. See 2d Cir. IOP E(b). Appeal from the United States District Court for the Southern District of New York (Rakoff, J.). ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED. Steven Petronio appeals from the October 2, 2019 judgment of the United States District Court for the Southern District of New York (Rakoff, J.) granting summary judgment to Defendants-Appellees National Railroad Passenger Corporation (“Amtrak”) and Steven J. Collins in Petronio’s action under the whistleblower-protection provisions of the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. §§ 20109, et seq. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review. “We review de novo the award of summary judgment, construing the evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences and resolving all ambiguities in its favor.” Jaffer v. Hirji, 887 F.3d 111 , 114 (2d Cir. 2018) (internal quotation marks, brackets, and citation omitted). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Under the FRSA, a “railroad carrier engaged in interstate or foreign commerce . . . shall not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee for . . . reporting, in good faith, a hazardous safety or security condition.” 49 U.S.C. § 20109(b)(A). “To establish a prima facie case of retaliation under the FRSA, an employee must show by a preponderance of the evidence that: (i) the employee engaged in protected activity as defined in the FRSA; (ii) the employer knew that the employee had engaged in protected activity; (iii) the employee suffered an unfavorable personnel action; and (iv) the protected activity was a contributing factor in the unfavorable action.” Lockhart v. MTA Long Island R.R., 949 F.3d 75 , 79 (2d Cir. 2020). Petronio contends on appeal that the district court erred in concluding that he failed to make out a prima facie showing that his protected activity—sending several e-mails to Amtrak management officials requesting trainings and reporting safety concerns—was a contributing factor in Amtrak’s termination of his employment. He argues primarily that the district court erred by (1) ignoring circumstantial evidence that his safety reports were a contributing factor to his termination; (2) rejecting his “cat’s paw” theory of liability that would charge Amtrak with Assistant Division Engineer John Collins’s alleged bias against Petronio because of his safety reports; and (3) allowing Amtrak to justify Petronio’s termination based on his violation of Amtrak’s workplace policies that incorporated subjective criteria. We conclude that the district court correctly granted summary judgment to Appellees. There is no evidence that the Amtrak officers who decided to charge, convict, and terminate Petronio for his violation of Amtrak’s workplace policies were aware of Petronio’s safety reports. Petronio’s purported circumstantial evidence that his safety reports were a contributing factor to his termination—such as temporal proximity between the safety reports and his termination, or alleged hostility to his safety reports from Amtrak employees without decision- making power—cannot overcome this fatal defect. Accordingly, no reasonable factfinder could find that a preponderance of the evidence established that Petronio’s protected activity was a contributing factor to his discharge. We further agree with the district court that the cat’s paw theory is inapplicable to hold Amtrak liable here. In a cat’s paw case, a plaintiff can succeed “even absent evidence of illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to have the impermissible bias played a meaningful role in the decisionmaking process.” Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267 , 272 (2d Cir. 2016) (internal quotation marks, brackets, citation omitted). Petronio argues that Collins played such a “meaningful role” in his termination, citing Collins’s suspension of Petronio, his role in initiating disciplinary charges, and his testimony at Amtrak’s disciplinary hearing. The record is clear that Susan Obey, the charging officer, was responsible for filing the charges. After Collins received a report of misconduct, Collins consulted with Obey, and then—acting on Obey’s advice—collected statements from witnesses and met with Petronio on November 7 about the allegations, before charges were filed. While Collins testified about Petronio’s conduct in this November 7 meeting at Petronio’s disciplinary hearing, Amtrak’s decisionmakers relied also on the testimony of multiple other witnesses in concluding that Petronio had violated workplace policies. Assuming based on the foregoing that Collins played a meaningful role in the decisionmaking process, we nevertheless conclude that no reasonable jury could find that the preponderance of the evidence established that the safety reports were a contributing factor in Collins’s actions in connection with the disciplinary proceedings. There is no evidence that Collins took any actions adverse to Petronio until Collins received reports of Petronio’s potential violations of Amtrak’s workplace policies—already one month after Petronio sent his final safety report to Collins. And though Petronio argues that the evidence demonstrates Collins’s bias against him, this argument is unavailing. Petronio testified that he and Collins never discussed the safety reports, let alone in a manner that demonstrates bias. Petronio makes much of Collins’s testimony that “since [he] was fairly new at Amtrak, [he] thought it was odd that a pipefitter would write an email to the deputy division engineer regarding a safety concern and that it wasn’t brought up to the foreman, the assistant supervisor, the supervisor, the safety liaisons, somebody of that magnitude . . . .” App’x at 1865. But this testimony does not show bias or that Petronio’s reports angered Collins; at most it shows that Collins thought Petronio’s conduct was unusual because he did not escalate safety concerns through Amtrak’s chain of command. Petronio’s allegation that Collins was hostile during the November 7 meeting is also insufficient to show bias. The meeting, which did not discuss the safety reports, concerned a potential threat that Petronio made against a co-worker that was independently reported to Collins by two other Amtrak employees. In light of these circumstances, the mere fact that Collins knew of Petronio’s safety reports is insufficient on its own to establish that Petronio’s protected activity contributed to Collins’s alleged hostility in the meeting, or the subsequent actions he took in response to the meeting. In short, though Collins was aware of Petronio’s safety reports, no reasonable jury would find that the preponderance of the evidence established that this knowledge influenced Collins in connection with the disciplinary proceedings.  We have considered the remainder of Petronio’s arguments and find them to be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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19-3141 Negrito v. Buonaugurio 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 “SUMMARY 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 2nd day of December, two thousand twenty. PRESENT: JOHN M. WALKER, JR., ROBERT A. KATZMANN, RICHARD C. WESLEY, Circuit Judges. _____________________________________ Paul Noel Negrito, FKA Paul A.E. Noel, Plaintiff-Appellant, v. 19-3141 Trooper James Buonaugurio, Defendant-Appellee, Captain Michael Eaton, Mayor Lovely A. Warren, Captain Kevin Reilly, Superintendent Keith Corlett, Defendants. _____________________________________ For Plaintiff-Appellant: PAUL NOEL NEGRITO, pro se, Rochester, New York. For Defendant-Appellee: BEEZLY J. KIERNAN, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor  General, Jennifer L. Clark, Assistant Solicitor General, on the brief), for Letitia James, Attorney General, State of New York, Albany, New York. Appeal from a judgment of the United States District Court for the Western District of New York (Siragusa, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Plaintiff-appellant Paul Noel Negrito, pro se, appeals from a judgment of the United States District Court for the Western District of New York in favor of the defendants in the instant 42 U.S.C. § 1983 action. The complaint alleges that defendant-appellee James Buonaugurio, a state trooper, falsely arrested and imprisoned Negrito in violation of the Fourth Amendment during a traffic stop that resulted in three tickets for traffic violations. The district court subsequently granted Buonaugurio’s motion to dismiss the complaint and denied Negrito’s motion for a default judgment as moot, both of which Negrito challenges on appeal. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal. I. Denial of Negrito’s Motion for a Default Judgment “We review the district court’s decision [on a motion for a] default judgment for abuse of discretion.” Pecarsky v. Galaxiworld.com Ltd., 249 F.3d 167 , 171 (2d Cir. 2001). 1 We discern no error, let alone an abuse of discretion, in the district court’s denial of Negrito’s motion for a default judgment. Negrito argues that a default judgment is warranted because, allegedly, Buonaugurio did not file a timely answer or motion in response to his complaint within 21 days of the service. However, Buonaugurio was never properly served with the 1 Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, emphases, footnotes, and citations are omitted. 2 summons and complaint. Service is proper if it complies with one of the methods outlined in Rule 4(e)(2) of the Federal Rules of Civil Procedure or with the law of the state where the district court is located or where service is made. See Fed. R. Civ. P. 4(e). The complaint and the summons were mailed to Buonaugurio, they were never returned as executed, and no proof of service was ever filed. Mailing, without any additional action taken, is not a sanctioned means of service under the Federal Rules or New York law. See Fed. R. Civ. P. 4(e)(2); N.Y. C.P.L.R. § 308. Therefore, a default judgment would have been improper. See Rosa v. Allstate Ins. Co., 981 F.2d 669 , 679 (2d Cir. 1992) (observing that a motion for default judgment was correctly denied when, inter alia, service was improper). Moreover, Negrito’s argument that the court misapplied Rules 55(c) and 60(b) of the Federal Rules of Civil Procedure is misdirected. Rule 55(c) permits a court to set aside an entry of default “for good cause” and set aside a default judgment in accordance with Rule 60(b). See Fed. R. Civ. P. 55(c). Here, the district court could not have misapplied these Rules, because there was no entry of default or default judgment to vacate. II. Granting of Buonaugurio’s Motion to Dismiss “We review de novo a district court’s dismissal of a complaint under Rule 12(b)(6), accepting all of the complaint’s factual allegations as true and drawing all reasonable inferences in the [plaintiff’s] favor.” Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424 , 429 (2d Cir. 2012). As an initial matter, the district court was permitted to consider the documents by the City of Rochester Traffic Violations Agency (“TVA”) in deciding the motion to dismiss, as they were public filings. See Kavowras v. N.Y. Times Co., 328 F.3d 50 , 57 (2d Cir. 2003) (“Judicial notice may be taken of public filings . . . .”); Brass v. American Film Technologies, Inc., 987 F.2d 142 , 3 150 (2d Cir. 1993) (observing that a court may consider “matters of which judicial notice may be taken” on a motion to dismiss). “The Fourth Amendment requires that an officer making [] a [traffic] stop have probable cause or reasonable suspicion that the person stopped has committed a traffic violation or is otherwise engaged in or about to be engaged in criminal activity.” Holeman v. City of New London, 425 F.3d 184 , 189 (2d Cir. 2005). “Probable cause is a complete defense to a constitutional claim of false arrest . . . and false imprisonment.” Betts v. Shearman, 751 F.3d 78 , 82 (2d Cir. 2014). The district court correctly ruled that probable cause existed because the TVA had ruled that Negrito was guilty of the three traffic violations for which he was issued tickets on the night he was stopped. We have ruled that a criminal conviction “normally would be conclusive evidence of probable cause” for the arrest, Weyant v. Okst, 101 F.3d 845 , 852 (2d Cir. 1996), but we have not addressed the precise issue of whether an adjudication of guilt on a traffic violation conclusively establishes probable cause. But see Coffey v. Town of Wheatland, 135 A.D.2d 1125 , 1126, 523 N.Y.S.2d 267 (4th Dep’t 1987) (holding that a decision by an administrative law judge of the New York State Department of Motor Vehicles to revoke plaintiff’s license based on a traffic violation collaterally estopped plaintiff from relitigating the existence of probable cause). Nevertheless, because the Monroe County Court affirmed the TVA’s rulings and the TVA’s documents note the criminal nature of its proceeding, we find it appropriate to hold that, in this particular context, the adjudication of guilt on Negrito’s traffic violations establishes probable cause. 2 2 We are not persuaded by Negrito’s argument that his appeal to the Monroe County Court “discredit[ed]” the TVA’s determinations. Appellant’s Br. 22–23. Although it is true that “[a] conviction that has been reversed on appeal is no evidence of the existence of probable cause,” Weyant, 101 F.3d at 852 , the Monroe County Court affirmed the TVA’s rulings, and Negrito’s 4  Further, Negrito’s allegation that the stop was unlawfully prolonged was also properly dismissed. “[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s mission—to address the traffic violation that warranted the stop and attend to related safety concerns.” Rodriguez v. United States, 575 U.S. 348 , 354 (2015). Beyond ordinary inquiries, an officer may ask other questions “so long as [the] [unrelated] inquiries do not measurably extend the duration of the stop.” Arizona v. Johnson, 555 U.S. 323 , 333 (2009). Under this standard, most of Buonaugurio’s inquiries—asking for Negrito’s license and registration, examining the restriction on his license, attempting to give a preliminary breath test, and having him step out of the vehicle—were all “ordinary inquiries incident to [a traffic] stop.” Illinois v. Caballes, 543 U.S. 405 , 408 (2005); see also Rodriguez, 575 U.S. at 355 (observing that examples of ordinary inquiries include “checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance”). As to the remaining inquiries—such as whether Negrito was British and what his two middle initials stood for—it is not adequately alleged that these questions “measurably extend[ed] the duration of the stop.” Johnson, 555 U.S. at 333 . We have considered all of Negrito’s remaining arguments on appeal and have found in them no grounds for reversal. Accordingly, we AFFIRM the judgment of the district court. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court subsequent motion for leave to appeal his traffic convictions was denied by the New York Court of Appeals. 5

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17-3219 Heitor v. Barr BIA Straus, IJ A078 323 092 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 “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 2nd day of December, two thousand twenty. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Chief Judge, 9 REENA RAGGI, 10 JOSEPH F. BIANCO, 11 Circuit Judges. 12 _____________________________________ 13 14 ERITON JOABIS HEITOR, 15 Petitioner, 16 17 v. 17-3219 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Glenn L. Formica, New Haven, CT. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 27 General; Song Park, Senior 28 Litigation Counsel; Micah Engler,  1 Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, DC. 5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review 8 is DENIED. 9 Petitioner Eriton Joabis Heitor, a native and citizen of 10 Brazil, seeks review of a September 14, 2017, decision of the 11 BIA affirming a May 24, 2017, decision of an Immigration Judge 12 (“IJ”) denying Heitor’s motion to reopen proceedings and 13 rescind his in absentia removal order. In re Eriton Joabis 14 Heitor, No. A 078 323 092 (B.I.A. Sept. 14, 2017), aff’g No. 15 A 078 323 092 (Immig. Ct. Hartford May 24, 2017). Heitor 16 separately moves for remand to the BIA for consideration of 17 his argument that the immigration court lacked authority to 18 order his removal in light of Pereira v. Sessions, 138 S. Ct. 19 2105 (2018). We assume the parties’ familiarity with the 20 underlying facts and procedural history in this case. 21 As an initial matter, there is no merit to Heitor’s 22 argument, raised in his motion to remand, that he is entitled 23 to relief under Pereira. To the extent that he argues that 2  1 his Notice to Appear (“NTA”) was insufficient to vest 2 jurisdiction in the immigration court under Pereira, his 3 argument is foreclosed by our decision in Banegas-Gomez v. 4 Barr, in which we held that Pereira does not “void 5 jurisdiction in cases in which an NTA omits a hearing time or 6 place” and that an NTA lacking this information is sufficient 7 to vest jurisdiction “so long as a notice of hearing 8 specifying this information is later sent to the alien.” 922 9 F.3d 101 , 110, 112 (2d Cir. 2019) (emphasis omitted). 10 Although Heitor’s April 2001 NTA did not specify the time and 11 date of his initial hearing, he was personally served with a 12 notice providing a hearing date of May 9, 2001—and he attended 13 that hearing. To the extent that he relies on Pereira to 14 argue that he could not have been expected to attend his 15 hearings because of the alleged NTA defect, this argument 16 fails because he appeared at his initial hearing. 17 Heitor’s challenges to the agency’s denial of his motion 18 to rescind his in absentia removal order are also without 19 merit. We have reviewed the IJ’s decision denying the motion 20 to rescind as supplemented by the BIA. See Chen v. Gonzales, 21 417 F.3d 268 , 271 (2d Cir. 2005). We review the denial of a 3  1 motion to rescind or reopen for abuse of discretion. Alrefae 2 v. Chertoff, 471 F.3d 353 , 357 (2d Cir. 2006). As relevant 3 here, the agency may rescind an in absentia removal order if 4 the alien demonstrates that he lacked notice of the hearing 5 or, if rescission is requested within 180 days, “if the alien 6 demonstrates that the failure to appear was because of 7 exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C); see 8 8 C.F.R. § 1003.23(b)(4)(ii). 9 The agency did not abuse its discretion in finding that 10 Heitor received adequate notice of the hearing where he failed 11 to appear. If, as here, notice is “served via regular mail” 12 rather than certified mail, there is “a ‘less stringent, 13 rebuttable presumption’ of receipt.” Silva-Carvalho Lopes 14 v. Mukasey, 517 F.3d 156 , 159 (2d Cir. 2008) (quoting Alrefae, 15 471 F.3d at 359 ). The agency “must consider all of the 16 petitioner’s evidence (circumstantial or otherwise) in a 17 practical fashion, guided by common sense, to determine 18 whether the slight presumption of receipt of regular mail has 19 more probably than not been overcome.” Id. at 160. However, 20 for aliens who receive notice of their obligation to inform 21 the immigration court of any change in address and of the 4  1 consequences of failing to do so, the “requirement that an 2 alien ‘receive’ notice [is] constructively satisfied if 3 notice is properly provided and the alien changes address 4 without informing” the agency. Maghradze v. Gonzales, 462 5 F.3d 150 , 154 (2d Cir. 2006); see 8 U.S.C. § 1229(a). 6 Here, the record reflects that Heitor did not actually 7 receive notice of the hearing because the notice was returned 8 as undeliverable. But this fact is not dispositive because 9 the NTA, which Heitor did receive, provided notice of his 10 obligation to update his address with the immigration court 11 if he moved. Maghradze, 462 F.3d at 154 . The agency did not 12 abuse its discretion in finding that the notice was properly 13 provided to the address in the record, and that Heitor 14 effectively “thwarted delivery” because he did not 15 demonstrate that he was living or receiving mail at that 16 address. Id. Heitor affirmed that he moved to the Hartford 17 address after he was released on bond, but he did not provide 18 any information about how long he remained there or whether 19 he ever received mail there. The record indicates that 20 Heitor did eventually move, but not that he informed the 21 agency of his new address; to the contrary, Heitor asserted 5  1 in his affidavit that he was not aware of his obligation to 2 do so. Because counsel’s statement in a brief is not 3 evidence, the BIA properly discounted Heitor’s attorney’s 4 assertion on appeal that Heitor lived at the address he had 5 provided the agency for one year. See Pretzantzin v. Holder, 6 736 F.3d 641 , 651 (2d Cir. 2013). The address on the enclosed 7 hearing notice was correct, and the Government is entitled to 8 a presumption that the agency properly addressed the 9 envelope. See Nat’l Archives and Records Admin. v. Favish, 10 541 U.S. 157 , 174 (2004) (discussing, in the context of a 11 FOIA application, the presumption that government officials 12 have properly performed their duties). The USPS endorsement 13 indicates that Heitor was not known at the address, not that 14 the address was illegible or that delivery at the address of 15 record could not otherwise be attempted. Circumstantial 16 evidence in the record that Heitor might not have thwarted 17 delivery is not compelling: Heitor appeared at a previous 18 hearing, but he was detained at the time; and although Heitor 19 now asserts that he had an incentive to appear because he has 20 a meritorious asylum claim, he did not attempt to pursue it 21 for more than 15 years and it is not a strong claim—abuse at 6  1 the hands of his father does not appear to implicate a 2 protected ground as needed to state an asylum claim. See 8 3 U.S.C. § 1101(a)(42); cf. Matter of M-R-A-, 24 I. & N. Dec. 4 665, 674 (BIA 2008) (describing evidence that may be relevant 5 to rebutting the presumption that a notice sent by regular 6 mail was delivered, including appearances at prior hearings 7 and evidence that the alien is eligible for relief from 8 removal). Accordingly, the agency did not abuse its 9 discretion in finding that Heitor had constructive notice of 10 his hearing. 11 The agency also did not abuse its discretion in denying 12 Heitor’s motion to the extent he alleged exceptional 13 circumstances because he did not file his motion within 180 14 days of his removal order. See 8 U.S.C. § 1229a(b)(5)(C)(i); 15 8 C.F.R. § 1003.23(b)(4)(ii). Heitor was ordered removed in 16 2002, and he did not move to reopen until 2017. Even if the 17 motion were timely, Heitor’s assertion of past abuse is not 18 a basis to rescind an in absentia order because he did not 19 demonstrate that his “failure to appear was because of” these 20 circumstances. 8 C.F.R. § 1003.23(b)(4)(ii) (emphasis 21 added). 7  1 Finally, Heitor does not challenge the agency’s denial 2 of sua sponte reopening and has therefore waived review of 3 that issue. See Yueqing Zhang v. Gonzales, 426 F.3d 540 , 541 4 n.1 (2d Cir. 2005) (finding claim not raised in brief 5 abandoned). 6 For the foregoing reasons, the petition for review is 7 DENIED. All pending motions and applications are DENIED and 8 stays VACATED. 9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, 11 Clerk of Court 8

2020-12-02 16:00:20.206255+00

http://www.ca2.uscourts.gov/decisions/isysquery/885328ea-a01a-40a2-91b3-64a0341e4251/10/doc/19-2728_so.pdf

19-2728 Acosta v. Thomas 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 2nd day of December, two thousand twenty. PRESENT: JOHN M. WALKER, JR., ROBERT A. KATZMANN, JOSEPH F. BIANCO, Circuit Judges. _____________________________________ Jose Acosta, Plaintiff-Appellant, v. 19-2728 Justin Thomas, Superintendent, Marcy Correctional Facility, Dr. Vadlamudi, Facility Health Director, Marcy Correctional Facility, Carl J. Koenigsmann, Deputy Commissioner, Chief Medical Officer, Joseph Gullo, NYS DOCCS Audiologist, Defendants-Appellees, John Serhan, NYS DOCCS Audiologist, Defendant. _____________________________________ FOR PLAINTIFF-APPELLANT: Jose Acosta, pro se, Woodbourne, NY. FOR DEFENDANTS-APPELLEES: Owen Demuth, (Barbara D. Underwood, Victor Paladino, on the brief) for Letitia James, Attorney General of the State of New York, Albany, NY. Appeal from a judgment of the United States District Court for the Northern District of New York (Kahn, J.; Dancks, M.J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Appellant Jose Acosta, pro se and incarcerated, appeals the district court’s order granting summary judgment in favor of defendant Dr. Krishna Vadlamudi, Mr. Acosta’s former treating physician at Marcy Correctional Facility (“Marcy”), and defendant Dr. Carl Koenigsmann, Chief Medical Officer for the New York Department of Corrections and Community Supervision (“DOCCS”). Mr. Acosta sued the defendants under 42 U.S.C. § 1983, claiming that they exhibited deliberate indifference to his medical needs in violation of the Eighth Amendment when they discontinued his Neurontin prescription for pain, and that Dr. Vadlamudi retaliated against him in violation of the First Amendment when he refused to reinstate his prescription after Mr. Acosta filed grievances. 1 We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. 1 Mr. Acosta did not raise any arguments in his appeal brief regarding his deliberate indifference claims against defendant Gullo (his audiologist) and defendant Thomas (Superintendent of Marcy). Nor did he raise arguments about any of the defendants’ deliberate indifference to his hearing problems. These claims are therefore waived. See LoSacco v. City of Middletown, 71 F.3d 88 , 92–93 (2d Cir. 1995). Mr. Acosta raised his First Amendment retaliation claim against Dr. Vadlamudi only in his reply brief, and we consider it waived as well. See JP 2  We review a grant of summary judgment de novo, “resolv[ing] all ambiguities and draw[ing] all inferences against the moving party.” Garcia v. Hartford Police Dep’t, 706 F.3d 120 , 126–27 (2d Cir. 2013) (per curiam). 2 “Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Doninger v. Niehoff, 642 F.3d 334 , 344 (2d Cir. 2011). I. Eighth Amendment Claim Against Dr. Vadlamudi An incarcerated plaintiff may prevail on an Eighth Amendment claim only if he demonstrates that: (1) his medical condition is objectively a serious one (the “objective” test); and (2) the defendant acted with deliberate indifference to the plaintiff’s medical needs (the “subjective” test). Brock v. Wright, 315 F.3d 158 , 162, 164 (2d Cir. 2003); see Farmer v. Brennan, 511 U.S. 825 , 834 (1994). As to the objective test, “[f]actors relevant to the seriousness of a medical condition include whether a reasonable doctor or patient would find it important and worthy of comment, whether the condition significantly affects an individual’s daily activities, and whether it causes chronic and substantial pain.” Salahuddin v. Goord, 467 F.3d 263 , 280 (2d Cir. 2006). For the purposes of this analysis, we assume arguendo that Mr. Acosta’s condition is sufficiently serious. The subjective test is satisfied by a showing that a defendant acted or failed to act “while actually aware of a substantial risk that serious inmate harm will result.” Id. This requires Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418 , 428 (2d Cir. 2005). 2 Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, emphases, footnotes, and citations are omitted. 3 “something more than mere negligence; but proof of intent is not required.” Cuoco v. Moritsugu, 222 F.3d 99 , 106 (2d Cir. 2000). In other words, “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837 . The standard is also met where the official’s actions involve “the unnecessary and wanton infliction of pain contrary to contemporary standards of decency.” Helling v. McKinney, 509 U.S. 25 , 32 (1993); see Crawford v. Cuomo, 796 F.3d 252 , 256 (2d Cir. 2015). Here, the record evidence shows that Dr. Vadlamudi was concerned about the long-term use of an anti-convulsant medication like Neurontin for pain management because of its addictive properties and side effects—and particularly because, at the relevant point in time, Mr. Acosta had suffered no documented seizures for months. During his initial examination of Mr. Acosta in December 2015, Dr. Vadlamudi noted that Mr. Acosta was able to ambulate and move his extremities well, and Dr. Vadlamudi decided that he would taper Mr. Acosta off Neurontin in four days. Dr. Vadlamudi suggested that Mr. Acosta take Motrin or Tylenol for pain at sick call as needed. But after a comprehensive review of Mr. Acosta’s medical history later that day, Dr. Vadlamudi decided to take a more gradual approach by maintaining the prescription for 30 days while monitoring Mr. Acosta’s medical need for it and then tapering off the dosage, a position he affirmed in January 2016. While Mr. Acosta complained at sick call about being taken off Neurontin, the medical records indicate that he complained once about Motrin not being effective, after which he received Tylenol for his pain, in the course of his five appointments with Dr. Vadlamudi and his twenty-one sick call visits from January 2016 through July 2016. Mr. Acosta told the medical staff that the Tylenol helped, a statement that was uncontradicted, and he 4 requested it on fourteen occasions. Moreover, the medical records indicate that while Mr. Acosta complained about pain in his neck, back, and face, he did not describe it as excessive, unbearable, or excruciating, which would have alerted Dr. Vadlamudi or the staff that Tylenol was not effective. Mr. Acosta never told Dr. Vadlamudi that, by continuing to deny him Neurontin, Dr. Vadlamudi was causing him to “suffer and wallow in pain”—something that he did not mention until a March 2016 letter to Governor Cuomo and an April 2016 grievance, months after being taken off Neurontin. R. on Appeal Doc. No. 98-4 at 57 (Grievance); 108 at 71–75 (Letter). In sum, the medical records show that Mr. Acosta was monitored, that Dr. Vadlamudi exercised his medical judgment to take Mr. Acosta off Neurontin, that Tylenol addressed Mr. Acosta’s pain, and that his overall treatment was adequate. This evidence does not support a conclusion that Dr. Vadlamudi was aware that Mr. Acosta was “wallow[ing] in pain” or that Dr. Vadlamudi “knew that the course of treatment was largely ineffective, [yet] declined to do anything more to attempt to improve [Mr. Acosta’s] situation.” Hathaway v. Coughlin, 37 F.3d 63 , 68 (2d Cir. 1994). In other words, the evidence does not show that Dr. Vadlamudi was “aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed], and . . . also dr[e]w the inference” before deciding against reinstating Mr. Acosta’s Neurontin prescription. Farmer, 511 U.S. at 837 . While Mr. Acosta points to numerous occasions when he told Dr. Vadlamudi that he experienced pain, none of these references, separately or together, show that Dr. Vadlamudi “disregarded an excessive risk to [Mr. Acosta’s] safety.” Hilton v. Wright, 673 F.3d 120 , 127 (2d Cir. 2012). While Mr. Acosta clearly disagreed with Dr. Vadlamudi’s decision to discontinue his Neurontin prescription, “[i]t has long been the rule that a prisoner does not have the right to choose 5 his medical treatment as long as he receives adequate treatment.” Hill v. Curcione, 657 F.3d 116 , 123 (2d Cir. 2011); see also Chance v. Armstrong, 143 F.3d 698 , 703 (2d Cir. 1998) (“[T]he fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation.”). And even though some of Mr. Acosta’s other physicians at different institutions had determined that Neurontin was an appropriate treatment, “mere disagreement over the proper treatment does not create a constitutional claim” so long as the treatment was adequate. Chance, 143 F.3d at 703 . II. Supervisory Claims Against Dr. Koenigsmann Generally, “[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662 , 676 (2009). As a result, “[i]t is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Colon v. Coughlin, 58 F.3d 865 , 873 (2d Cir. 1995). Moreover, for a supervisor to be liable under § 1983, “there must have been an underlying constitutional deprivation.” Blyden v. Mancusi, 186 F.3d 252 , 265 (2d Cir. 1999). Mr. Acosta’s failure to establish an underlying deprivation of his Eighth Amendment rights by Dr. Vadlamudi is therefore fatal to Mr. Acosta’s § 1983 supervisor liability claim against Dr. Koenigsmann. See id. But even if we were to proceed to look for personal involvement, the claim against Dr. Koenigsmann would still fail. As Chief Medical Officer, Dr. Koenigsmann never examined or diagnosed Mr. Acosta. Dr. Koenigsmann did not make medical decisions as to the appropriate treatments for individual inmates or resolve disputes between inmates and their doctors. There is no evidence that he had notice of or instituted any policy, practice, or custom under which the 6 allegedly unconstitutional act occurred. True, DOCCS instituted a medication-with-abuse- potential (“MWAP”) policy in 2017, which placed restrictions on Neurontin prescriptions. But to the extent Mr. Acosta argues that this MWAP policy establishes Dr. Koenigsmann’s personal involvement, that argument fails because Dr. Koenigsmann did not devise the MWAP policy; DOCCS did. As other evidence of Dr. Koenigsmann’s personal involvement, Mr. Acosta also points to two replies Dr. Koenigsmann wrote to Mr. Acosta in response to letters that he had sent to Governor Cuomo. Mr. Acosta also cites Dr. Koenigsmann’s email communications with physicians who treated Mr. Acosta after Dr. Vadlamudi’s retirement. However, only one of Mr. Acosta’s letters to Governor Cuomo complained that his Neurontin prescription was being discontinued, “leaving [him] to wallow and suffer in pain without any recourse but to use medication that causes . . . side effects.” R. on Appeal Doc. No. 108 at 71–72. Dr. Koenigsmann’s response reminded Mr. Acosta that the Central Office had no authority to address his complaint, which was the subject of a pending grievance that would soon be addressed. Dr. Koenigsmann also suggested that Mr. Acosta utilize the existing sick call procedures to address his pain in the meantime. None of this indicates that Dr. Koenigsmann failed to act upon being informed that unconstitutional acts were occurring. Finally, Dr. Koenigsmann’s email correspondence simply instructed Mr. Acosta’s new physician on how to follow the MWAP policy when prescribing Neurontin; at no point did Dr. Koenigsmann encourage or discourage its prescription. This guidance was in line with his job responsibilities that included implementation of medical policies and practices related to medical care of inmates and thus does not indicate any personal involvement in Mr. Acosta’s care. 7  We have considered all of Mr. Acosta’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court. FOR THE COURT: Catherine O=Hagan Wolfe, Clerk of Court 8

2020-12-02 16:00:31.97979+00

http://media.ca11.uscourts.gov/opinions/unpub/files/201914686.pdf

USCA11 Case: 19-14686 Date Filed: 12/02/2020 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 19-14686 Non-Argument Calendar ________________________ D.C. Docket No. 4:19-cr-10003-JLK-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JESUS FRANCISCO HERNANDEZ CISNEROS, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (December 2, 2020) Before JILL PRYOR, BRANCH, and LUCK, Circuit Judges. PER CURIAM:  USCA11 Case: 19-14686 Date Filed: 12/02/2020 Page: 2 of 7 Jesus Cisneros appeals the 135-month sentence imposed after he pleaded guilty to conspiracy to possess with intent to distribute five kilograms or more of cocaine while on board a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. § 70506(b). Cisneros argues that his sentence is substantively unreasonable because the district court did not properly weigh the sentencing factors set forth in 18 U.S.C. § 3553(a). I. Background As part of his plea, Cisneros stipulated to the following facts. On January 30, 2019, the United States Coast Guard intercepted a stateless go-fast vessel in international waters upon the high seas.1 Cisneros, a Guatemalan national and the master of the vessel, and two other men, both Colombian nationals, were on board. The Coast Guard discovered 15 bales of cocaine on board, totaling 600 kilograms. All three men ultimately confessed. Cisneros’s presentence investigation report (“PSI”) indicated that a well- known drug trafficker in Guatemala offered Cisneros $20,000 in U.S. currency to be the vessel’s captain and transport cocaine from Colombia to Guatemala. Cisneros indicated that he participated in the offense because he needed money to take care of his mother who was very sick, and he expressed remorse for his 1 The stateless vessel was subject to the jurisdiction of the United States pursuant to the Maritime Drug Law Enforcement Act (MDLEA), 46 U.S.C. § 70502(c). 2  USCA11 Case: 19-14686 Date Filed: 12/02/2020 Page: 3 of 7 actions. The PSI also indicated that Cisneros completed the second grade in Guatemala, but left school at the age of eight because he needed to work to help support his family. 2 Until the time of his arrest, Cisneros resided in a small one- bedroom house in Guatemala with no electricity or running water. Cisneros’s advisory guidelines range was 135 to 168 months’ imprisonment. Cisneros faced a statutory maximum term of life imprisonment. At sentencing, Cisneros apologized for his actions and reiterated that the reason he participated was that his mother was very sick, and he needed the money to help her and to feed his children. 3 Cisneros’s counsel requested a downward variance of 60 months’ imprisonment, arguing that “the people that are most responsible for Mr. Cisneros being here are the cartel members” and that Cisneros was just a “dispensable cog[]” in the cartel’s trafficking system. He maintained that a 60-month sentence was also appropriate because, although this offense was undoubtedly serious, incarcerating Cisneros for a lengthy period of time would not deter the cartels from trafficking cocaine into the United States. The government requested a sentence of 135 months’ imprisonment at the bottom of the guidelines range. The district court denied Cisneros’s request for a downward variance and imposed a sentence of 135 months’ imprisonment, followed by two years of 2 Cisneros was 27 years’ old at the time of the underlying offense. 3 Cisneros noted that his mother died shortly after his arrest. 3  USCA11 Case: 19-14686 Date Filed: 12/02/2020 Page: 4 of 7 supervised release.4 Cisneros’s counsel objected, arguing that the sentence was substantively unreasonable and greater than necessary to achieve the purposes of sentencing. This appeal followed. II. Discussion We review the reasonableness of a sentence under a deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38 , 41 (2007). The district court must issue a sentence that is “sufficient, but not greater than necessary” to comply with the purposes of 18 U.S.C. § 3553(a)(2), which include the need for a sentence to reflect the seriousness of the offense, promote respect for the law, provide just punishment, deter criminal conduct, and protect the public from future criminal conduct. 18 U.S.C. § 3553(a). The court must also consider the nature and circumstances of the offense and the history and characteristics of the defendant. Id. § 3553(a)(1). We examine whether a sentence is substantively reasonable in light of the totality of the circumstances. Gall, 552 U.S. at 51 . A district court abuses its discretion when it (1) fails to consider relevant factors that were due significant weight, (2) gives an improper or irrelevant factor significant weight, or (3) “commits a clear error of judgment in considering the proper factors.” United States v. Rosales-Bruno, 789 F.3d 1249 , 1256 (11th Cir. 4 It was revealed at sentencing that Cisneros’s codefendants also received 135-month sentences. 4  USCA11 Case: 19-14686 Date Filed: 12/02/2020 Page: 5 of 7 2015) (quotation omitted). Because that rarely happens, “it is only the rare sentence that will be substantively unreasonable.” Id. (quotation omitted). Further, we ordinarily expect a sentence within the guidelines range to be reasonable. United States v. Talley, 431 F.3d 784 , 788 (11th Cir. 2005). The burden rests on the party challenging the sentence to show “that the sentence is unreasonable in light of the entire record, the § 3553(a) factors, and the substantial deference afforded sentencing courts.” Rosales-Bruno, 789 F.3d at 1256 . We will “vacate the sentence if, but only if, we ‘are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.’” United States v. Irey, 612 F.3d 1160 , 1190 (11th Cir. 2010) (en banc) (quoting United States v. Pugh, 515 F.3d 1179 , 1191 (11th Cir. 2008)). Cisneros argues that his 135-month sentence is substantively unreasonable because the district court failed to give proper weight to the nature and characteristics of the offense and Cisneros’s personal history and characteristics. He also argues that the district court imposed a sentence that is greater than necessary to achieve the sentencing goals of § 3553(a). In particular, Cisneros contends the district court did not give adequate weight to the fact that he is indigent, only has a second grade education, did not have any ownership interest in 5  USCA11 Case: 19-14686 Date Filed: 12/02/2020 Page: 6 of 7 the cocaine, and was simply being paid a lump sum to transport the cocaine for the cartel. Cisneros also notes that the average sentence for cocaine offenses is 75 months’ imprisonment and statistically district courts grant downward variances 24.4% of the time, and he maintains that a downward variance was appropriate in his case. Here, Cisneros’s 135-month sentence falls at the bottom of the advisory guidelines range, which is a strong indication of reasonableness. Talley, 431 F.3d at 788 . Further, the record establishes that the district court considered the PSI, which contained information concerning Cisneros’s education, indigency, and background. The district court also considered Cisneros’s allocution and arguments as to why a below-guidelines sentence of 60 months’ imprisonment was appropriate. Yet the district court had discretion as to how much weight to give the various § 3553(a) factors. See Rosales-Bruno, 789 F.3d at 1254 (explaining that the weight to give each § 3553(a) factor “is ‘committed to the sound discretion of the district court,’” and the district court “is permitted to attach ‘great weight’ to one factor over others” (first quoting United States v. Williams, 526 F.3d 1312 , 1322 (11th Cir. 2008), then quoting United States v. Shaw, 560 F.3d 1230 , 1237 (11th Cir. 2009))). Cisneros has not shown that the district court failed to consider relevant factors that were due significant weight, gave improper or irrelevant factors significant weight, or committed a clear error of judgment in considering 6  USCA11 Case: 19-14686 Date Filed: 12/02/2020 Page: 7 of 7 the factors. Id. at 1256. Moreover, Cisneros’s 135-month sentence was well-below the statutory maximum, which is another indicator of reasonableness. See United States v. Gonzalez, 550 F.3d 1319 , 1324 (11th Cir. 2008) (holding that the defendant’s sentence was reasonable in part because it was well below the statutory maximum). Cisneros’s sentence was also identical to that of his codefendants. Accordingly, we are not “left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.” Irey, 612 F.3d at 1190 (en banc) (quotation omitted). Therefore, we conclude that Cisneros’s sentence is substantively reasonable, and we affirm. AFFIRMED. 7

2020-12-02 16:00:53.23437+00

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2020cv0592-13

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CHRISTOPHER M. ELLINGTON, Plaintiff, Civil Action No. 20-592 (BAH) v. Chief Judge Beryl A. Howell LIBRARY OF CONGRESS, et al., Defendants. MEMORANDUM OPINION Plaintiff Christopher Ellington, who identifies himself as a disabled veteran and is proceeding pro se, brings this employment discrimination lawsuit against the Library of Congress (“LOC”), claiming that LOC discriminated against him in declining to hire him for any of three positions that he applied for in 2019 and later retaliated against him when he filed an informal discrimination complaint with LOC’s Office of Equal Employment Opportunity and Diversity Programs (“EEO/DP”), in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., and the Americans with Disabilities Act (“ADA”) , id. §§ 12101 et seq. He also alleges defamation, although the factual predicate of this claim is not wholly clear. LOC moves to dismiss plaintiff’s claims for lack of subject matter jurisdiction and failure to state a claim, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See Def.’s Mot. Dismiss (“Def.’s Mot.”), ECF No. 8; Def.’s Mem. Supp. Mot. Dismiss (“Def.’s Mem.”), ECF No. 8-1; see also Pl.’s Opp’n Def.’s Mot. Dismiss (“Pl.’s Opp’n”), ECF No. 9; 1 Def.’s Reply Supp. Mot. Dismiss (“Def.’s Reply”), ECF No. 10.1 For the reasons set forth below, LOC’s motion is granted. I. BACKGROUND Between January 1, 2019 and March 25, 2019, plaintiff, who alleges that he is a disabled veteran, see Compl. ¶ 15, ECF No. 1, applied for three separate positions at LOC , id. ¶ 1. He was neither interviewed nor hired for any of them. Id. ¶ 2. Upon being denied the positions, plaintiff asked LOC supervisors and EEO/DP personnel about why he had not been hired or interviewed. Id. ¶ 21. He learned from Human Resources supervisor Karen Caldwell that his “points preference,” a numerical advantage in the hiring process to which plaintiff believes he is entitled, was excluded from “most” of the applications that he submitted, although she did not identify specifically which of the three applications excluded his points preference. Id. ¶ 17. Plaintiff further alleges that the hiring officials for each of the three positions were never made aware of his points preference or his “disability preference,” to which he also alleges he was entitled. Id. ¶ 17. Caldwell allegedly advised plaintiff that he was not selected for the positions “because of [s]ection [s]upervisors” and “not because [he was] a veteran, or because [he had] a disability.” Id. ¶ 24. In response, plaintiff explained that his “concern [was that] . . . the [s]ection [s]upervisors or other [h]iring [s]taff did not adequately consider [his] points preference,” as Caldwell had told him. Id. Caldwell otherwise refused to speak further with plaintiff about his applications and allegations of discrimination, even though in plaintiff’s view she had already 1 In a separate filing, plaintiff has also requested oral argument, see Pl.’s Mot. Oral Arg., ECF No. 11, which request is denied because a hearing is not necessary, in light of the narrow legal issues presented by LOC’s motion to dismiss, see LCvR 7(f) (authorizing oral hearings at “the discretion of the Court”). 2 admitted to discrimination through her comments about his points preference, and instead referred him to EEO/DP. Id. ¶ 23. On June 13, 2019, plaintiff submitted to EEO/DP an informal complaint of discrimination, which he submitted as an attachment to his complaint, claiming that LOC’s refusal to consider his points preference and disability preference was discriminatory. See id. ¶ 25. Pursuant to LOC regulations, plaintiff was assigned an EEO Counselor to conduct an initial investigation into his complaint and attempt to resolve it informally. Id. ¶ 8.2 Plaintiff, however, was unsatisfied with his EEO Counselor, who allegedly provided him information that conflicted with advice given to him by Human Resources and the EEO/DP Chief, Vicki Magnus, and was negligent in investigating plaintiff’s complaint. Id.3 Plaintiff also alleges that the EEO Counselor refused to answer questions that would have provided him with evidence to prove discrimination against him in the hiring process. Id. ¶ 11. Specifically, the EEO Counselor, as well as Magnus, refused to tell him the names of the hiring officials for each of the three positions for which he applied. Id. ¶ 9. EEO/DP explained to plaintiff that they were responsible, not him, for investigating his allegation of discrimination with respect to the hiring for these three positions. See id. Further contributing to plaintiff’s dissatisfaction with the EEO/DP complaint process was his view that this process was neither timely nor adhering to LOC’s procedures for such investigations. Plaintiff alleges that Magnus did “not adher[e] to clear timelines” or LOC procedures for handling EEO complaints. Id. ¶ 27. For instance, EEO/DP had informed plaintiff that he would be provided with certain information by a specific date, but then missed the 2 The Complaint refers to this individual as an “EEO Advocate,” but LOC’s regulations governing the administration of discrimination complaints refer to a Counselor. See infra Part III.B. 3 Plaintiff does not know the EEO Counselor’s name and claims that LOC refused to provide him with this information. Compl. ¶ 8. 3 deadline. Id. ¶ 7. Magnus then allegedly lied to plaintiff about why the deadline was missed and provided plaintiff confusing or contradictory advice in response to his questions. Id. Plaintiff further alleges that Magnus “acted completely outside of her scope of duties and responsibilities” by colluding with Human Resources, the hiring section supervisors, and plaintiff’s EEO Counselor to discriminate against plaintiff, by directing his EEO Counselor to dismiss the complaint without an adequate investigation. Id. ¶¶ 27–28. Consequently, plaintiff filed a second informal complaint, evidently by email in July 2019, concerning the delay and alleged improprieties in LOC’s handling of his original June 2019 complaint. See id. ¶ 6. Plaintiff filed the instant lawsuit on February 28, 2020. He claims discrimination on the basis of veteran status and disability, retaliation for filing his June 2019 EEO/DP complaint, and defamation. In support of these claims, plaintiff explains that LOC did not interview him and did not place him in certain preference categories to which he was entitled , id. ¶ 29, and, further, that he was “most deserving of the positions applied for” in part because he possessed “the knowledge and experience to perform his duties [and] responsibilities,” id. ¶ 20. He “was specifically trained” for, and had knowledge of, “the positions for which he applied,” and alleges that he was “more knowledge[able] and experienced than other candidates that applied and were hired for the position(s) [he] applied for.” Id. ¶ 30. Plaintiff posits as “highly unlikely,” given his experience and preference points to which he was entitled due to his veteran and disability status, that he would not even have been interviewed for any of the three positions for which he applied, and speculates that he would have been at the top of the candidate list, in light of these factors. Id. ¶ 31. He alleges that a jury could find that LOC discriminated against him by not interviewing him, and that the candidates who were hired had “less[e]r qualifications” and no 4 employment preference. Id. The Complaint demands compensatory and punitive damages, as well as declaratory and injunctive relief. See id. at 15. LOC seeks dismissal of all of plaintiff’s claims or, in the alternative, summary judgment, on the grounds that the Court lacks jurisdiction over plaintiff’s defamation claim and that plaintiff has failed to administratively exhaust his discrimination and retaliation claims. See Def.’s Mot. at 1; Def.’s Mem. at 12. Plaintiff has filed an opposition to defendant’s motion, see Pl.’s Opp’n, and presents further argument against dismissal in his request for oral argument, see Pl.’s Mot. Oral Arg. at 2–9, which functionally serves as a sur-reply. Defendant’s motion to dismiss is now ripe for resolution. II. LEGAL STANDARDS A. Rule 12(b)(1) To survive a motion to dismiss under Rule 12(b)(1), the plaintiff bears the burden of demonstrating the court’s subject matter jurisdiction over the claims asserted. Arpaio v. Obama, 797 F.3d 11 , 19 (D.C. Cir. 2015). “‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized by Constitution and statute.’” Gunn v. Minton, 568 U.S. 251 , 256 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 , 377 (1994)). Indeed, federal courts are “forbidden ... from acting beyond [their] authority,” NetworkIP, LLC v. FCC, 548 F.3d 116 , 120 (D.C. Cir. 2008), and, therefore, have “an affirmative obligation ‘to consider whether the constitutional and statutory authority exist for [them] to hear each dispute,’” James Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d 1085 , 1092 (D.C. Cir. 1996) (quoting Herbert v. Nat'l Acad. of Scis., 974 F.2d 192 , 196 (D.C. Cir. 1992)). Absent subject matter jurisdiction over a case, the court must dismiss it. Arbaugh v. Y & H Corp., 546 U.S. 500 , 506–07 (2006); FED. R. 5 CIV. P. 12(h)(3) (requiring dismissal of action “at any time” the court determines it lacks subject matter jurisdiction). When considering a motion to dismiss under Rule 12(b)(1), the court must accept as true all uncontroverted material factual allegations contained in the complaint and “‘construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged’ and upon such facts determine jurisdictional questions.” Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137 , 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970 , 972 (D.C. Cir. 2005)). Where, as here, a defendant files a motion to dismiss under both Rule 12(b)(1) and Rule 12(b)(6), the Rule 12(b)(1) grounds for dismissal are examined first “as subject matter jurisdiction presents a threshold question.” El Paso Natural Gas Co. v. United States, 750 F.3d 863 , 874 (D.C. Cir. 2014). B. Rule 12(b)(6) To survive a motion to dismiss under Rule 12(b)(6), the “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Wood v. Moss, 572 U.S. 744 , 757–58 (2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662 , 678 (2009)). A claim is facially plausible when the plaintiff pleads factual content that is more than “‘merely consistent with’ a defendant's liability” but instead “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 , 556–57 (2007)); see also Singletary v. Howard Univ., 949 F.3d 287 , 295 (D.C. Cir. 2019). In considering a motion to dismiss for failure to plead a claim on which relief can be granted, the court must consider the complaint in its entirety, accepting all factual allegations in the complaint as true, even if doubtful in fact, and construe all reasonable inferences in favor of 6 the plaintiff. Twombly, 550 U.S. at 555 ; Nurriddin v. Bolden, 818 F.3d 751 , 756 (D.C. Cir. 2016) (“We assume the truth of all well-pleaded factual allegations and construe reasonable inferences from those allegations in a plaintiff's favor.” (citing Sissel v. U.S. Dep’t of Health & Human Servs., 760 F.3d 1 , 4 (D.C. Cir. 2014))). The court “need not, however, ‘accept inferences drawn by [a] plaintiff[] if such inferences are unsupported by the facts set out in the complaint.’” Nurriddin, 818 F.3d at 756 (alterations in original) (quoting Kowal v. MCI Commc’ns Corp., 16 F.3d 1271 , 1276 (D.C. Cir. 1994)). III. DISCUSSION Plaintiff claims both that Magnus and Caldwell defamed him, and that LOC discriminated and retaliated against him, in violation of Title VII and the ADA. 4 These claims are discussed in turn, and, for different reasons, none survives. A. Plaintiff’s Defamation Claim That the basis for plaintiff’s defamation claim is unclear is beside the point, because, as LOC argues, see Def.’s Mem. at 16–17, the Court lacks subject matter jurisdiction over this claim. Sovereign immunity bars lawsuits for money damages against the United States and its agencies absent a specific waiver by the federal government. See FDIC v. Meyer, 510 U.S. 471 , 475 (1994); see also Clark v. Library of Cong., 750 F.2d 89 , 102–04 (D.C. Cir.1984). Federal district courts are granted, pursuant to 28 U.S.C. § 1346(b), “jurisdiction over a certain category 4 For plaintiff’s claim pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671 et seq., the United States has substituted itself as defendant for Magnus and Caldwell. See Def.’s Notice of Substitution of Party, ECF No. 7. LOC points out that plaintiff’s discrimination claims also name the wrong defendants, i.e., LOC, Magnus, Caldwell, and the unknown EEO Counselor, when the proper defendant for those claims is Librarian of Congress Carla Hayden, since Title VII and the ADA permit suits only against the heads of federal agencies in their official capacities, not the agency itself or its individual employees. See Def.’s Mem. at 8; 42 U.S.C. § 2000e-16(c) (under Title VII and the ADA, an aggrieved employee “may file a civil action . . . in which . . . the head of the department, agency, or unit, as appropriate, shall be the defendant.”). 7 of claims for which the United States has waived its sovereign immunity and rendered itself liable.” Meyer, 510 U.S. at 477 (citation, internal quotation marks, and alteration omitted). The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671 et seq., provides a limited waiver of sovereign immunity where a plaintiff seeks monetary damages against a federal agency for certain common law torts committed by federal employees. Dolan v. U.S. Postal Serv., 546 U.S. 481 , 484–85 (2006). Although the Library of Congress “is a congressional agency,” Keeffe v. Library of Cong., 777 F.2d 1573 , 1574 (D.C. Cir. 1985) (citing 2 U.S.C. § 171(1)), the FTCA defines “federal agency” broadly to include “the judicial and legislative branches [and] independent establishments of the United States,” and thereby encompasses LOC. 28 U.S.C. § 2671; see also Hickman v. Library of Cong., 74 F. Supp. 3d 329 , 331 (D.D.C. 2014). Nevertheless, “[t]he FTCA explicitly excludes libel and slander from its coverage.” Simpkins v. Dist. of Columbia, 108 F.3d 366 , 371 (D.C. Cir. 1997) (citing 28 U.S.C. § 2680(h)); see also Thomas, 394 F.3d at 973 , 976 (affirming dismissal of defamation claims because they are not actionable under the FTCA). Plaintiff’s defamation claim thus does not fall within the coverage of the FTCA’s waiver of sovereign immunity. Accordingly, the Court lacks subject matter jurisdiction over plaintiff’s defamation claim, and LOC’s motion to dismiss that claim pursuant to Rule 12(b)(1) is granted. B. Plaintiff’s Title VII and ADA Claims Title VII mandates that “all personnel actions affecting employees or applicants for employment . . . in . . . the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). The ADA likewise applies to LOC, see 42 U.S.C. § 12209(1), and forbids “discriminat[ion] against a qualified individual on the basis of disability in regard to job application procedures,” id. § 12112(a). 8 Before filing a Title VII or ADA lawsuit in federal court, however, a plaintiff must first exhaust his administrative remedies by seeking relief from the agency that allegedly discriminated against him. See Brown v. Gen. Servs. Admin., 425 U.S. 820 , 832 (1976); 42 U.S.C. § 2000e-16(c). Title VII and the ADA charge the Librarian of Congress with exercising the authority of the Equal Employment Opportunity Commission with respect to LOC, by promulgating regulations to govern the internal administration of complaints of violations of those statutes. See 42 U.S.C. §§ 2000e-16(b), 12117(a); see also Nichols v. Billington, 402 F. Supp. 2d 48, 69 (D.D.C. 2005). Plaintiff alleges that by declining to interview or hire him for the three positions for which he applied, LOC discriminated against him on the basis of his disability and veteran status. See Compl. ¶¶ 3–4, 29–30. He also alleges that LOC retaliated against him for filing an informal complaint in June 2019, evidently by failing to follow its own timeline and procedures for investigating a complaint and by refusing to tell him who was responsible for the hiring decisions to which he objected. See id. ¶¶ 9–10, 27–28. LOC argues that plaintiff’s discrimination and retaliation claims should be dismissed because he failed to exhaust his administrative remedies before filing the instant lawsuit. Def.’s Mem. at 7. Specifically, LOC claims that, after filing an informal complaint with EEO/DP, plaintiff never scheduled an interview or filed a formal complaint, such that EEO/DP was never able to investigate his allegations of discrimination, hold a hearing, or issue a final decision. Id. at 7, 12. LOC regulations require an applicant who believes that he has been discriminated against to notify EEO/DP, through a written informal complaint, not later than 45 calendar days after the date of the alleged discrimination. LCR 11-311 § 4(A), ECF No. 8-3.5 An EEO/DP Counselor 5 At the motion to dismiss stage, consideration of “matters outside the pleadings” typically requires that the motion instead be “treated as one for summary judgment under Rule 56.” FED. R. CIV. P. 12(d). That conversion, 9 then “shall conduct a final interview with the complainant not later than 15 workdays after the initial counseling date.” Id. § 4(D). If the Counselor has not resolved the complaint by the end of that period, she shall notify the complainant in writing of the complainant’s right to file a formal complaint within 10 days of receipt of that written notice. Id. A formal complaint must also be submitted in writing, through LOC’s “Complaint of Discrimination” form. Id. § 6(D). EEO/DP then determines whether the formal complaint satisfies certain requirements for acceptance, including whether it was timely filed and alleges specific facts supporting a determination of discrimination, harassment, or retaliation. Id. § 7(B). If the formal complaint is accepted, it is assigned to an investigator to “develop and impartial and appropriate factual record upon which” the EEO/DP Chief may determine whether the allegations of the complaint are true and amount to discrimination. Id. §§ 9(B), 10(A)–(B). Following the EEO/DP Chief’s determination, a complainant may request reconsideration by the Chief or a hearing before a third-party mediator. Id. §§ 10(C)–(D), 11(B)–(C). Following a hearing, if one is requested, the mediator prepares a report and transmits it to the Librarian of Congress , id. § 11(D)–(H), who is ultimately responsible for the final decision on the complaint, see id. § 12(A). “Within 90 days of receipt of notice of final action taken by” LOC, a however, is not triggered by consideration of “documents incorporated into the complaint by reference [or] matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 , 322 (2007). Thus, consideration of plaintiff’s June 2019 informal complaint and the LOC regulations establishing the exhaustion regime to which plaintiff’s discrimination claims are subject is appropriate. See, e.g., Kaempe v. Myers, 367 F.3d 958 , 965 (D.C. Cir. 2004) (holding that administrative documents were properly considered in ruling on defendant’s motion to dismiss, in particular because “they [were] referred to in the complaint and [were] integral” to one of plaintiff’s claims); Sierra v. Hayden, 254 F. Supp. 3d 230 , 237–38 (D.D.C. 2017) (“In the context of exhaustion, courts are willing to rely upon administrative orders and administrative complaints without converting the motion into one for summary judgment when the documents are ‘referred to in the complaint, . . . are integral to [the plaintiff’s] exhaustion of administrative remedies, and are public records subject to judicial notice.’” (alteration and omission in original) (quoting Laughlin v. Holder, 923 F. Supp. 2d 204 , 209 (D.D.C. 2013))); Bowe-Connor v. Shinseki, 845 F. Supp. 2d 77 , 89 & n.6 (D.D.C. 2012). 10 complainant may file a lawsuit in federal district court. 42 U.S.C. § 2000e-16(c); see also id. §§ 2000e-5(f), 12117(a); 29 C.F.R. § 1614.407(a). Although plaintiff filed an informal complaint with EEO/DP, he did not subsequently file a formal complaint once he was informed that his informal complaint had not been resolved and advised of his right to file a formal complaint. Indeed, Plaintiff acknowledges that he has not received a Notice of Right to Sue letter from EEO/DP. Compl. at 5. Plaintiff nevertheless disputes the characterization of his complaint as “informal,” noting that his attachment to the complaint form styled itself as a formal complaint. See Pl.’s Mot. Oral Arg. at 6–7. The LOC form that plaintiff completed and submitted, however, was the “Allegation of Discrimination” form used for informal complaints. Plaintiff has failed to administratively exhaust his discrimination and retaliation claims because he filled out only the “Allegation of Discrimination” form, and did not also subsequently complete and submit the “Complaint of Discrimination” form used for formal complaints—not because he failed to include the word “formal” in the header to the document he attached to his “Allegation of Discrimination” form, see id. at 7. Plaintiff also objects that even if he did not file a formal complaint, his June 2019 informal complaint complied with § 7 of LCR 11-311, which governs EEO/DP’s acceptance of formal complaints. See Pl.’s Mot. Oral Arg. at 3. Yet that section expressly requires the submission of a formal complaint on the “Complaint of Discrimination” form, LCR 11-311 § 7(B)(1), and provides that “EEO/DP shall accept a formal complaint for processing under this regulation only if” that requirement, among the other requirements of § 7, is met, id.§ 7(A). Plaintiff’s informal complaint therefore did not comply with § 7. 11  To the extent plaintiff argues that LOC should have treated his informal complaint as a formal complaint, this too is unpersuasive. As explained, only the filing of a formal complaint launches the investigative and adjudicative processes, and without the filing of a formal complaint, an investigation and subsequent final determination on plaintiff’s allegation of discrimination could not occur. Filing a formal complaint signals to LOC that a complainant’s grievance remains unresolved and thus that an investigation is necessary. Separately requiring an informal complaint, and treating informal complaints differently than formal complaints, gives LOC an opportunity to attempt to resolve a complaint quickly and informally if possible, before committing to a more intensive and time-consuming full-scale investigation. See LCR 11-311 § 4(C). Moreover, this two-tiered complaint system is a commonplace requirement of administrative exhaustion. See, e.g., Hamilton v. Geithner, 666 F.3d 1344 , 1350 (D.C. Cir. 2012) (explaining that to properly administratively exhaust discrimination claim, plaintiff needed to first file an informal complaint and undergo EEO counseling, and then file a formal complaint, and noting that “[f]iling a formal complaint is a prerequisite to exhaustion”); see also, e.g., Sierra, 254 F. Supp. 3d at 239 –40 (rejecting plaintiff’s argument that she had administratively exhausted her discrimination claim against LOC by “adher[ing] to the purpose of [LOC’s] regulations” notwithstanding that she did not actually comply with those regulations). Finally, even if plaintiff’s informal complaint had sufficed to administratively exhaust his claims, the instant lawsuit would nevertheless be time-barred. As explained, a complainant is required to file a lawsuit in federal district court within 90 days of LOC’s final action on his complaint. Plaintiff submitted his informal complaint on June 13, 2019. Supposing that complaint alone sufficed to administratively exhaust his claims, which it did not, and factoring in the 15 days that EEO/DP is allotted by regulation to resolve an informal complaint, see LCR 12 11-311 § 4(D), plaintiff would have needed to file a lawsuit by September 26, 2019. The instant lawsuit, filed February 28, 2020, misses that deadline by more than five months. Thus, plaintiff failed to administratively exhaust his claims, which would not have been timely in any event, and his ADA claims are therefore dismissed without prejudice.6 Plaintiff’s claim for discrimination on the basis of veteran status is another matter. No cause of action is provided under any statute plaintiff cites for discrimination on this basis. See 42 U.S.C. § 2000e-16(a) (forbidding discrimination on the basis of race, color, religion, sex, or national origin); id. § 12112(a) (forbidding discrimination on the basis of disability); see also Atanus v. Sebelius, 652 F. Supp. 2d 4 , 12 (D.D.C. 2009) (noting that “non-veteran status is not among the protected classes of Title VII”); Daniels v. Wilkie, Civil Action No. 17-1543 (RC), 2018 WL 2324085 , at *3 n.4 (D.D.C. May 22, 2018) (transferring employment discrimination claim based on veteran status and noting that it would likely be dismissed by transferee court for lack of subject matter jurisdiction). Accordingly, that claim is dismissed with prejudice.7 IV. CONCLUSION For the foregoing reasons, LOC’s motion to dismiss is granted. The Court lacks subject matter jurisdiction over plaintiff’s defamation claim, and plaintiff has not administratively 6 LOC regulations require that a complainant file a formal complaint not later than ten workdays following notification that the informal complaint has not been resolved. See LCR 11-311 § 4(D). The ten-day window has now long since closed, as plaintiff was notified that his informal complaint had not been resolved on July 1, 2019. See Email from Jorge Rice to Christopher Ellington (July 1, 2019), ECF No. 8-3. Nonetheless, EEO/DP has the authority to extend that time limit if it determines “that the complainant was prevented by circumstances beyond his[] control from submitting the complaint on time.” LCR 11-311 § 6(F). 7 Plaintiff’s complaint also alleges a violation of Arizona Revised Statutes § 25-505.01(m), which concerns enforcement of child support and spousal support obligations. The complaint provides no clue as to the factual basis of this claim or the Court’s subject matter jurisdiction to consider it. Plaintiff has thus not pled “sufficient factual matter” to state a plausible claim to relief, Wood, 572 U.S. at 757 –58 (quoting Iqbal, 556 U.S. at 678 ), and this claim is therefore dismissed. 13 exhausted his discrimination and retaliation claims. An Order consistent with this Memorandum Opinion will be entered contemporaneously. Date: December 2, 2020. __________________________ BERYL A. HOWELL Chief Judge 14

2020-12-02 16:02:46.329289+00

https://www.3dca.flcourts.org/pre_opinion_content_download/692457

Third District Court of Appeal State of Florida Opinion filed December 2, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-1143 Lower Tribunal No. 18-5301 ________________ Noreen Sablotsky, Appellant, vs. Eduardo Gonzalez-Hernandez, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Reemberto Diaz, Judge. Klein Glasser Park & Lowe, P.L., Robert M. Klein and Andrew M. Feldman, for appellant. Robert P. Lithman, P.A., and Robert P. Lithman (Lake Worth); Law Offices of Jennifer S. Carroll, P.A., and Jennifer S. Carroll (Jupiter), for appellee. Before MILLER, GORDO and BOKOR, JJ. GORDO, J.  Noreen Sablotsky appeals the trial court’s finding, following a bench trial, that the loan she issued to Eduardo Gonzalez-Hernandez was usurious. She also appeals the trial court’s denial of her request for attorney’s fees based on its conclusion that Gonzalez-Hernandez was the prevailing party in the underlying suit. We affirm the trial court’s judgment as to its finding that the loan was usurious without further discussion, Jersey Palm–Gross, Inc. v. Paper, 658 So. 2d 531 , 534 (Fla. 1995), but write to address the trial court’s denial of attorney’s fees to Sablotsky. “[A] trial court’s determination of which party prevailed . . . is reviewed for an abuse of discretion.” T & W Devs., Inc. v. Salmonsen, 31 So. 3d 298 , 301 (Fla. 5th DCA 2010) (citations omitted). “[T]he party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorney’s fees.” Kapila v. AT&T Wireless Servs., Inc., 973 So. 2d 600 , 602 (Fla. 3d DCA 2008) (quoting Moritz v. Hoyt Enters., Inc., 604 So. 2d 807 , 810 (Fla.1992)). Sablotsky filed the underlying case for breach of promissory note and to foreclose on the security interest. The trial court’s judgment was in Sablotsky’s favor inasmuch as the trial court concluded Gonzalez-Hernandez breached the terms of the note by failing to make payments thereon, awarded Sablotsky the full principal amount of the loan, and ordered the sale of the secured property to pay off the sum owed to Sablotsky. As such, Sablotsky prevailed on the significant issues litigated. 2 See Green Cos. v. Kendall Racquetball Inv., Ltd., 658 So. 2d 1119 , 1121 (Fla. 3d DCA 1995) (“In a breach of contract action, one party must prevail.” (citations omitted)). As the prevailing party, she was entitled to recover her attorney’s fees in connection with her efforts to “foreclose[e] the [security interest] for the legally [enforceable] amount of the debt.” Trs. of Cameron-Brown Inv. Grp. v. Tavormina, 385 So. 2d 728 , 729 (Fla. 3d DCA 1980) (quoting Wilson v. Conner, 142 So. 606 , 609 (Fla. 1932)). 1 Thus, we reverse the trial court’s denial of fees to Sablotsky. Affirmed in part, reversed in part and remanded. 1 To the extent that Sablotsky appeals the award of fees to Gonzalez-Hernandez, this issue is not yet ripe for this Court’s review, as the trial court merely concluded that Gonzalez-Hernandez was entitled to fees but has not yet set the amount of such fees. See, e.g., Yampol v. Turnberry Isle S. Condo. Ass’n, 250 So. 3d 835 , 837 (Fla. 3d DCA 2018) (“An order granting entitlement to attorney’s fees but not determining the amount of fees or costs is a non-final, non-appealable order . . . .” (citing Garcia v. Valladares, 99 So. 3d 518 (Fla. 3d DCA 2011))). 3

2020-01-17 22:01:50.376336+00

Lansdon

*1362OPINION. Lansdon: Petitioner claims a right to special assessment under the provisions of section 328 of the Revenue Acts of 1918 and 1921, upon the ground of abnormalities affecting its invested capital and income during the taxable year. The abnormalities in invested capital, it claims, result from its tailing over at the time of its organization a going business of great value, built up by John Twohy who, in connection therewith, enjoyed a virtual monopoly of the business of docking and undocking vessels at the coal piers from which he operated; and further claims that the good will built up by Twohy *1363in these prior operations and his friendly relations with his em- . ployer, the railway company which owned the piers, by reason of which the petitioner enjoyed free use of its facilities during the first two years of its operations and preferences thereafter, were valuable assets which it acquired and which contributed to its earnings. The record is deplorably lacking in evidence upon which we can come to any satisfactory conclusion as to the extent of the business carried on by John Twohy, which the petitioner took over, or the legal rights by which he enjoyed the advantages petitioner values so highly, and for this reason it is impossible to determine what weight, if any, should be assigned to such as income-producing factors in petitioner’s business. But one witness, N. M. Osborne, president of petitioner, testified as to these matters. From him we learn that Twohy was employed by the Norfolk & Western Railway Oo. but upon what basis, or with what special rights with reference to the use of these piers we are not informed. In addition to this employment the witness, referring to Twohy, says: “ He also managed the two boats and docking and towing around the piers.” No further attempts are made to enlighten us as to what Twohy did in this last mentioned connection, although the witness assures us that by reason of his relationship with the owner of the piers he enjoyed a “ virtual ” monopoly of the business. No records were preserved of this business and the only suggestion in aid of an estimate of the income from it is the statement of this witness, who owned an interest in one of the tugs, that “my recollection of it is we were generally paid around 30 to 40 per cent.” This statement, of course, is too indefinite to be of value for any purpose, even though the witness had made known the frequency of such payments and the value of his interest, which he did not, and argument will not supply that which the evidence fails to establish. The only facts which we find satisfactorily established in the record in connection with the actual business carried on by Twohy and taken over by the petitioner are that in said business he, Twohy, employed four tug boats, and that on April 3,1896, those boats were capitalized by petitioner at a value of $83,200. There was a going business of some- kind, of course, taken over by the petitioner, but the facts concerning it, as herein-before stated, are so meager as to be almost nil, and whatever good will, if any, attached to it, was purely personal to Twohy. This seems too clear for serious argument. It was because of Twohy’s daily presence on the docks when the vessels applied for coal and were assigned to berths that enabled him personally to book the business for himself or the petitioner. He could with equal freedom, even after the formation of the petitioner, have continued in ihis business on his own account or delivered it to a competitor of petitioner, since there is no evidence of a contract between Twohy *1364and petitioner binding him to its service, or limiting his freedom to contract with others. The petitioner, therefore, acquired nothing by way of good will. Hirschberg v. Bacher, 159 Wis. 207; 149 N. W. 383; McCall v. Moschowitz, 1 N. Y. St. 99; Ryman v. Kennedy, 141 Ga. 75; 80 S. E. 551. A fortiori, business secured through a monopoly can not be attributable to good will. Wilcox v. Consolidated Gas Co., 212 U. S. 19. The most that the petitioner acquired, according to the record, upon its organization, in addition to the four tugs valued at $83,200, was the services of an experienced executive in the person of Twohy, whose friendly relationship with his employer enabled it to secure certain advantages and privileges at the piers. In these advantages it at no time, however, prior to 1899, could claim a vested property right; neither could it so claim in the services of Twohy, since he was in no way bound to it through contract within the rule recognized in the Viscose Co. appeal, 3 B. T. A. 444, and other cases cited by petitioner in its brief*, had his qualifications and value to it been such as to bring him within the classifications established in those cases. The record shows that by far the greatest earnings made by the petitioner have been since the death of Twohy, and under its present management. The petitioner has wholly failed to sustain its allegations in respect to this assignment of error, and the action of the respondent thus challenged is, therefore, approved. The abnormality claimed by petitioner as affecting its income for the taxable year is not established by the record. The reduction of its capital by one-half, under the circumstances shown, in no way affected, one way or the other, the capital actually employed in its business, since it merely amounted to disbursement of deferred dividends which had theretofore been added to its capital, but never used or needed in the business. The earnings for the year in question were materially in excess of those ordinarily produced in previous years, but there is no evidence to show that it is the result of abnormal conditions respecting either capital or income. It would rather seem, from all facts shown here, to be the normal result of a well managed business which has prospered on account of favorable conditions. In these circumstances there is no abnormality within the rule sought to be applied, and the determination of the respondent in so holding is approved. DeBrown Auto Sales Co., 2 B. T. A. 896; United Shoe Stores Co., 2 B. T. A. 73; Cleveland & Western Coal Co., 4 B. T. A. 93. The remaining assignment of error challenges the act of the respondent in reducing its invested capital for the taxable year by the amount paid by it during said year on account of additional, taxes for prior years. The issue raised by the petitioner respecting *1365this assignment of error was decided adversely to its contention by the Board in Russel Wheel & Foundry Co., 3 B. T. A. 1168, and other cases since, consistently followed. By virtue of the authority of these decisions, the action of the respondent in respect to this error is approved. Decision will he entered for the respondent.

2020-12-02 16:02:50.097012+00

https://www.3dca.flcourts.org/pre_opinion_content_download/692458

Third District Court of Appeal State of Florida Opinion filed December 2, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-1687 Lower Tribunal No. 12-7415 ________________ Energy Smart Industry, LLC, Appellant, vs. Millennium Condominium Association, Inc., Appellee. An Appeal from the Circuit Court for Miami-Dade County, David C. Miller, Judge. Law Offices of Jason Gordon, P.A., and Jason Gordon (Hollywood), for appellant. Cole, Scott & Kissane, P.A., and Lissette Gonzalez, for appellee. Before FERNANDEZ, HENDON, and BOKOR, JJ. HENDON, J.  The plaintiff below, Energy Smart Industry, LLC (“Energy Smart”), appeals from the trial court’s order dismissing, with prejudice, the action it filed against Millennium Condominium Association, Inc. (“Millennium”) for lack of prosecution under Florida Rule of Civil Procedure 1.420(e), and striking as sham pleadings “the purported record activity” and the second amended complaint pursuant to Florida Rule of Civil Procedure 1.150. For the reasons that follow, we reverse the order under review and remand the cause for further proceedings. Energy Smart filed suit against Millennium in February 2012. On April 12, 2019, the trial court served a Notice of Lack of Prosecution under rule 1.420(e), stating that a party opposing dismissal for lack of prosecution must appear at the hearing and affirmatively establish at least one of five occurrences, including that “[t]here has been record activity within sixty (60) days immediately following service of this Notice and Order to Appear[.]” 1 1 The Notice of Lack of Prosecution provides that the party opposing dismissal must affirmatively establish at least one of the following: 1. There had been record activity within ten (10) months prior to service of this Notice and Order to Appear; or 2. A stay of the action was in effect within the ten (10) months prior to service of this Notice and Order to Appear; or 3. There has been record activity within sixty (60) days immediately following the service of this Notice and Order to Appear; or 4. The Court issued a stay of the action within sixty (60) days immediately following the service of this Notice and Order to Appear; or 2  On June 6, 2019, Maikel N. Eskander of Eskander Loshak LLP (collectively, Eskander”) filed a Stipulation for Substitution of Counsel on behalf of Energy Smart (“Stipulation for Substitution of Counsel”), which provides that Eskander shall be relieved of all further obligations as counsel for Energy Smart, and the Law Offices of Jason Gordon, P.A., and Jason Gordon, Esq. (collectively, “Gordon”), shall be substituted as counsel of record. On July 26, 2019, the trial court conducted a non-evidentiary hearing on the Notice of Lack of Prosecution. Thereafter, on August 1, 2019, the trial court entered a fifteen-page order (1) dismissing, with prejudice, Energy Smart’s action for failure to prosecute under rule 1.420(e), and (2) striking as sham pleadings Energy Smart’s “purported record activity” 2 and the second amended complaint under rule 1.150. The trial court’s order provides that Energy Smart filed its second amended complaint on February 8, 2013, and thereafter, the law firm who had been representing Energy Smart from the inception, Stok Folk + Kon, withdrew. Following the law firm’s withdrawal, about ten other firms/attorneys made 5. At least five (5) days before the hearing, the party opposing the dismissal established good cause, in writing, for the action to remain pending. In the instant case, it is undisputed that Energy Smart did not establish 1., 2., or 4., and did not provide any writing relating to good cause as set forth in 5. 2 The “purported record activity” is the Stipulation for Substitution of Counsel filed on June 6, 2019. 3 appearances as counsel for Energy Smart, including Eskander, who filed a notice of appearance on May 16, 2018, which was the last record activity immediately preceding service of the Notice of Lack of Prosecution on April 12, 2019. However, four of those other firms/attorneys, including Eskander, were not relieved from their responsibilities by an order entered by the trial court, and therefore, they remain as counsel of record for Energy Smart. In the order, the trial court, however, acknowledged that on June 6, 2019, which was during the sixty-day period immediately following the service of the Notice of Lack of Prosecution, Eskander filed on behalf of Energy Smart the Stipulation for Substitution of Counsel, but on that same date, the trial court rejected the proposed agreed order because it was missing Mr. Gordon’s Florida Bar number as required for substitution orders per the Clerk of Court. 3 The trial court’s order also states that Energy Smart failed to file any affidavit or showing of good cause within five days of the lack of prosecution hearing. Further, although Mr. Gordon appeared at the hearing on behalf of Energy Smart, the trial court found that he was not counsel of record as the trial court did not accept the purported agreed order on the Stipulation for Substitution of Counsel filed by 3 A proposed order is not attached to the Stipulation for Substitution of Counsel. There is no docket entry indicating that the trial court rejected the proposed agreed order. The Stipulation for Substitution of Counsel was signed by both Mr. Eskander and Mr. Gordon and included their Florida Bar numbers. 4 Eskander. The trial court further held that a substitution of counsel is not “activity” sufficient to preclude dismissal for lack of prosecution, citing to Boeing Co. v. Merchant, 397 So. 2d 399 (Fla. 5th DCA 1981), and Industrial Trucks of Florida, Inc. v. Gonzalez, 351 So. 2d 744 (Fla. 3d DCA 1977), and that Florida courts have held that a plaintiff’s motion for substitution of counsel and an order authorizing the substitution are not record activity that defeat a motion to dismiss for lack of prosecution, citing to Sewell Masonry Co. v. DCC Construction, Inc., 862 So. 2d 893 (Fla. 5th DCA 2003). The trial court also noted that it was aware of later Florida Supreme Court precedent establishing “a bright-line test—either there is record activity or there is not.” However, the trial court indicated in its order that, when the Stipulation for Substitution of Counsel was filed, Energy Smart’s counsel knew the case would not move forward, and concluded that Energy Smart had engaged in deliberate multiple periods of non-prosecution and failed to show good cause why the action should not be dismissed. The trial court further stated: “To that end, this Court finds that the stipulation for substitution of counsel filed on June 6, 2019 [by] Plaintiff’s counsel of record, Maikel Eskander, Esq. is a sham pleading.” The trial court concluded that the June 6, 2019 Stipulation for Substitution of Counsel and the Second Amended Complaint are “demonstrably false, a sham.” In addition to dismissing the underlying action, with prejudice, for lack of prosecution under rule 1.420(e), the trial also ruled that, pursuant to rule 1.150, it 5 was striking as sham pleadings Energy Smart’s “purported record activity” and the second amended complaint. This appeal followed. Rule 1.420(e), as amended effective January 1, 2006, provides as follows: Failure to Prosecute. In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute. As stated in rule 1.420(e), record activity is defined as the “filing of pleadings, order of court, or otherwise.” Id. The Florida Supreme Court held that rule 1.420(e) sets forth a bright-line rule for record activity—“any filing of record” within either the ten months immediately preceding the service of a notice of lack of prosecution or the sixty-day period following the service of the notice of lack of prosecution suffices to preclude dismissal for lack of prosecution. Chemrock Corp. v. Tampa 6 Elec. Co., 71 So. 3d 786 , 792 (Fla. 2011). 4 The application of this bright-line rule is considered “mechanical” and “consists of a review of the docket.” Waldeck, 300 So. 3d 1218 , 1219 (Fla. 4th DCA 2020); Zuppardo v. Dunlap & Moran, P.A., 186 So. 3d 1067 , 1068 (Fla. 2d DCA 2016) (holding that rule 1.420(e) “does not distinguish between active or passive record activity and generally requires only a cursory review of the record because there is either activity on the face of the record or there is not”) (internal quotation marks omitted). In the instant case, a review of the docket clearly indicates that, within the sixty days immediately following the service of the Notice of Lack of Prosecution, Energy Smart filed the Stipulation for Substitution of Counsel. This filing constitutes record activity under the bright-line rule set forth in rule 1.420(e). See Dyck-O’Neal, Inc., 207 So. 3d 898 , 898 (Fla. 4th DCA 2017) (holding that the filing of a notice of substitution of counsel is “sufficient to establish record activity within sixty days of service of the notice of lack of prosecution” as set forth in rule 1.420(e)); see also Coral Gables Imports v. Suarez, 219 So. 3d 101 , 102 (Fla. 3d DCA 2017) (holding that the filing of a notice of change of address within the sixty- day period immediately following service of a notice of lack of prosecution satisfies 4 Boeing Co., Industrial Trucks, and Sewell Masonry, which the trial court relied on in its order, pre-date Chemrock, in which the Florida Supreme Court stated: “[A]ny filing of record during the applicable time frame is sufficient to preclude dismissal— without regard to a finding that the filing is intended to affirmatively move the case toward resolution on the merits.” Chemrock, 71 So. 3d at 791 . 7 “the record activity requirement of rule 1.420(e), thereby precluding dismissal of the action for lack of prosecution”). Therefore, we reverse the portion of the order under review dismissing the underlying action, with prejudice, for lack of prosecution under rule 1.420(e). Moreover, in an attempt to avoid consideration of the Stipulation for Substitution of Counsel, which was filed within the sixty-day grace period, the trial court found that the filing was a sham and ruled that it was striking the filing under rule 1.150. By doing so, the trial court attempted to circumvent the bright-line rule regarding record activity under rule 1.420(e). See, e.g., Zuppardo, 186 So. 3d at 1069 (“[T]he trial court erred by examining the substance of the pleadings and exceeding the cursory review mandated by [rule 1.420(e)]”). Additionally, at the time of the rule 1.420(e) hearing, there was no pending motion to strike filed pursuant to rule 1.150, which provides: (a) Motion to Strike. If a party deems any pleading or part thereof filed by another party to be a sham, that party may move to strike the pleading or part thereof before the cause is set for trial and the court shall hear the motion, taking evidence of the respective parties, and if the motion is sustained, the pleading to which the motion is directed shall be stricken. Default and summary judgment on the merits may be entered in the discretion of the court or the court may permit additional pleadings to be filed for good cause shown. There was no notice provided to Energy Smart that at the July 26, 2019 lack of prosecution hearing, the trial court would address the striking of the second amended complaint or the Stipulation for Substitution of Counsel as sham pleadings pursuant 8 to rule 1.150. As such, Energy Smart’s due process rights were violated. Thus, we reverse the portion of the trial court’s order striking the “the purported record activity” and the second amended complaint as sham pleadings. Accordingly, we reverse the order under review and remand the cause for further proceedings. Reversed and remanded. 9

2020-12-02 16:03:00.886596+00

https://edca.4dca.org/DCADocs/2019/2420/192420_DC08_12022020_095821_i.pdf

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT CIKLIN LUBITZ, Appellant, v. MICHELE T. SCHENDEN a/k/a MICHELE TAMACCIO, TIMOTHY SCHENDEN, and MICHELE TAMACCIO SCHENDEN REVOCABLE TRUST, dated December 7, 2012 Co-Trustees MICHELE T. SCHENDEN and TIMOTHY SCHENDEN, Appellees. No. 4D19-2420 [December 2, 2020] Appeal and cross-appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Charles E. Burton, Judge; L.T. Case No. 502017DR008937XXXXSBFX. John D. Boykin of Ciklin Lubitz, West Palm Beach, for appellant. Joel M. Weissman and Sarah A. Vitulli of Joel M. Weissman, P.A., West Palm Beach, for appellee Michele T. Schenden a/k/a Michele Tamaccio. KUNTZ, J. A law firm appeals the circuit court’s final order denying its motion to adjudicate a charging lien against a former client in the client’s marital dissolution action. The client cross-appeals the circuit court’s denial of her entitlement to attorney’s fees in the same order. The circuit court correctly denied the law firm’s motion to impose a charging lien. To impose a charging lien, four requirements must be satisfied: “(1) an express or implied contract between attorney and client; (2) an express or implied understanding for payment of attorney’s fees out of the recovery; (3) either an avoidance of payment or a dispute as to the amount of fees; and (4) timely notice.” Menz & Battista, PL v. Ramos, 214 So. 3d 698 , 699 (Fla. 4th DCA 2017) (quoting Rebecca J. Covey, P.A. v. Am. Car Import Car Sales, 944 So. 2d 1202 , 1204 (Fla. 4th DCA 2006)).  But the law firm must not only provide services; it must provide services resulting in “a positive judgment or settlement for the client.” Id. (quoting Rudd v. Rudd, 960 So. 2d 885 , 887 (Fla. 4th DCA 2007)). Here, the law firm represented the client for only five months on limited jurisdictional issues. During the course of representation, the law firm did not obtain any settlements or financial relief for the client. The circuit court correctly concluded the law firm’s services did not produce a positive result for the client. On the cross-appeal, we reverse the court’s denial of attorney’s fees to the client. The parties’ representation agreement allowed the law firm to recover attorney’s fees incurred in litigating to collect unpaid sums under the agreement. Under the reciprocity provision in section 57.105(7), Florida Statutes (2019), the client had a right to recover her attorney’s fees for prevailing in defending against the charging lien. See, e.g., Rochlin v. Cunningham, 739 So. 2d 1215 , 1218 (Fla. 4th DCA 1999). We affirm the circuit court’s denial of the law firm’s motion to impose a charging lien. But we reverse the court’s denial of reciprocal attorney’s fees to the client for prevailing in that fee dispute. Affirmed in part and reversed in part. GROSS and MAY, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing. 2

2020-12-02 16:03:01.602687+00

https://edca.4dca.org/DCADocs/2020/0578/200578_DC05_12022020_100818_i.pdf

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT CHRISTOPHER DONNELL WILLIAMS, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D20-578 [December 2, 2020] Appeal of order denying rule 3.850 motion from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Charles A. Schwab, Judge; L.T. Case No. 562016CF002393A. David M. Lamos, Law Offices of David M. Lamos, Fort Pierce, for appellant. Ashley Moody, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee. ON APPELLANT’S MOTION FOR REHEARING GERBER, J. We deny appellant’s motion for rehearing on the merits, but otherwise treat the motion as seeking a written opinion, which we grant. We substitute this written affirmance for the per curiam affirmance without opinion which we issued on October 8, 2020. The defendant appeals from the circuit court’s order denying his amended motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The defendant’s amended motion raised twelve grounds, all of which the circuit court found did not entitle the defendant to relief. In this appeal, the defendant challenges only the circuit court’s denial of amended grounds eight, eleven, and twelve. We affirm without discussion the circuit court’s denial of amended grounds eight and twelve. We write solely to address amended ground eleven, the denial of which we also affirm.  Procedural History Following a series of controlled drug buys, the state charged the defendant with six counts of sale or delivery of heroin (Counts 1-6), six counts of possession of heroin (Counts 7-12), six counts of unlawful use of a two-way communications device (Counts 13, 15-19), and one count of driving without a valid driver’s license (Count 14). The state alleged the offenses occurred on six different dates. All of the offenses were tried before a single jury in one trial. The jury found the defendant guilty on counts 1, 2, 7, 8, 13, 14, and 15, and not guilty on the remaining counts. The following table shows the dates when each count allegedly occurred and the convictions: Date Counts Conviction August 12, 2016 1, 7, 13 Yes August 15, 2016 2, 8, 15 Yes August 16, 2016 3, 9, 16 No August 17, 2016 4, 10, 17 No August 18, 2016 5, 11, 18 No August 19, 2016 6, 12, 14, 19 Yes: ONLY Count 14 On direct appeal, we issued a per curiam affirmance without opinion. Williams v. State, 244 So. 3d 1083 (Fla. 4th DCA 2018). In ground eleven of the defendant’s amended rule 3.850 motion, he argued trial counsel was ineffective for failing to move to sever the alleged offenses which occurred on different days for separate trials before different juries. The defendant relied on, among other cases, Dupree v. State, 705 So. 2d 90 (Fla. 4th DCA 1998), and Carter v. State, 179 So. 3d 341 (Fla. 4th DCA 2015), both of which involved the sale of drugs on different days. 705 So. 2d at 97 ; 179 So. 3d at 341. We held the respective trial courts erred in denying the defendant’s motion to sever the counts because each transaction was a separate offense, 705 So. 2d at 97 , regardless of whether the sales were to the same buyer, 179 So. 3d at 341. 2 As we reasoned in Dupree, “Courts have recognized that the danger of improper consolidation lies in the fact that evidence relating to each of the crimes may have the effect of bolstering the proof of the other.” 705 So. 2d at 95 . The state responded here that even if the defendant’s trial counsel fell below an objective standard of reasonableness by not moving to sever the offenses for separate trials before different juries, the defendant was not prejudiced, because the jury did not convict him of every offense. The state noted that the jury convicted the defendant of the drug-related offenses occurring only on August 12 and 15, both of which were the only days with corroborating video and audio recording evidence. Those recordings were played for the jury, and the confidential informant identified the defendant in the recordings. On the other days, recordings were not taken. On August 16, the recording cellphone had no service and was faulty. On August 17, the confidential informant was utilizing a button camera on his shirt, but was forced to leave his shirt outside because the defendant saw the camera. On August 18, the confidential informant was told to leave his shirt and cellphone outside of where the alleged transaction occurred. On August 19, the defendant patted the confidential informant down and again made him leave his shirt and cellphone outside. The driving with a suspended license occurred on August 19, but a detective provided direct testimony that he saw the defendant driving. According to the state, “[g]iven that the jury’s verdict here demonstrates a careful consideration of the evidence and found [the defendant] guilty of only offenses committed on certain dates, the concerns expressed in … Dupree aren’t present here.” In denying ground eleven, the circuit court “adopt[ed] the State’s reasoning in finding no prejudice where the Defendant was acquitted on four drug sale dates.” This Appeal This appeal followed. The denial of a motion for ineffective assistance of counsel is reviewed under “a mixed standard of review, deferring to the circuit court’s factual findings that are supported by competent, substantial evidence, but reviewing the circuit court’s legal conclusions de novo.” Lukehart v. State, 70 So. 3d 503 , 512 (Fla. 2011). 3  To demonstrate ineffective assistance of trial counsel, the defendant must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984): First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. at 687 . On the second prong, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694 . Here, the circuit court’s factual findings, as adopted from the state’s response discussing the jury’s verdict as compared to the evidence, are supported by competent, substantial evidence in the record. We also agree with the circuit court’s legal conclusion that even if the defendant’s trial counsel fell below an objective standard of reasonableness by not moving to sever the offenses for separate trials before different juries, the defendant was not prejudiced. The jury convicted the defendant only for the drug-related offenses in which he was directly recorded participating in the transaction. The jury does not appear to have been influenced by the non-recorded alleged transactions, even where the confidential informant and detectives testified that he participated in those alleged transactions, because the jury acquitted him of those alleged offenses. Thus, the defendant has not shown a reasonable probability sufficient to undermine confidence in the outcome that, but for the failure to sever the offenses, the result of the proceeding would have been different. Affirmed. LEVINE, C.J., and WARNER, J., concur. * * * Not final until disposition of timely filed motion for rehearing. 4

2020-12-02 16:03:02.977546+00

https://edca.4dca.org/DCADocs/2020/0453/200453_DC05_12022020_100532_i.pdf

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT ASHLEY NICOLE MCKENZIE, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D20-453 [December 2, 2020] Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Robert E. Belanger, Judge; L.T. Case No. 562013CF002593AXXXX. Carey Haughwout, Public Defender, and Claire Victoria Madill, Assistant Public Defender, West Palm Beach, for appellant. Ashley Moody, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee. WARNER, J. Appellant challenges the trial court’s order revoking her probation and entering a judgment of conviction for driving under the influence with priors, for which she was sentenced to four years in prison. She makes multiple claims, none of which merit reversal. The State concedes, however, that the written order of revocation must be corrected as it includes findings of acts of violation for which no evidence was presented. We thus affirm, but remand for correction of the order revoking probation. Appellant was charged in 2012 with driving under the influence which was raised to a third-degree felony because of two prior convictions. She entered a no contest plea and was sentenced to some jail time plus probation. While on probation, she was arrested for a DUI in Texas and subsequently convicted of the crime. This triggered the filing of an affidavit of violation of probation in Florida in 2018, and appellant was extradited from Texas to face the charges. Subsequently, the State filed an amended affidavit in 2019 charging appellant with other violations of probation, including failing to pay court costs, failing to pay costs of supervision, and failing to comply with instructions. Appellant was represented by an assistant public defender. After several continuances, the final hearing was set for February 2020. At 3:32 p.m., the day before the hearing, a private attorney entered her notice of appearance on behalf of appellant. The attorney also filed a “notice of conflict” and motion to continue the hearing, stating that she would be out of the jurisdiction of the court for the next day’s hearing. The private attorney sought a continuance. The public defender moved to withdraw because of representation by the private attorney. On the same date, the court denied the continuance after considering that the motion to continue was filed the day before the hearing and that the case had already been continued multiple times at the behest of the defense. However, it noted that counsel must be present so that the court could make findings regarding the circumstances. The court also noted that the right to counsel must not be used to delay or subvert judicial proceedings, citing several cases including Foster v. State, 704 So. 2d 169 , 173 (Fla. 4th DCA 1997). As a result, private counsel moved to withdraw, which the court granted. At the hearing the next day, the public defender raised the continuance issue. She noted that appellant had expressed dissatisfaction with her, but that she had no good faith basis for requesting a continuance as she was prepared for the hearing. The public defender then sought a Nelson 1 hearing, but the trial court noted that no motion had been filed for such an inquiry. Appellant was allowed to “air her grievances” against the public defender, which centered on her claims that the public defender failed to do any work on her case, failed to return phone calls, and attempted to force her into accepting a plea offer. The court then stated that to the extent this was a Nelson hearing, the issues appellant raised were not enough to show ineffective assistance of counsel. The court also colorfully explained what any attorney representing her would face: As far as what counsel might do, whether it’s Miss Canty or Miss Hogan, they have to play . . . the cards you dealt them. And a lot of times in a VOP where you’re on probation, felony supervision and there’s no doubt you’re on felony supervision and you commit a new crime and you’re actually sentenced on the new crime and the State has a certified copy of the conviction, which occurred after you were placed on 1 Nelson v. State, 274 So. 2d 256 , 259 (Fla. 4th DCA 1973). 2  probation, you’ve essentially dealt them a royal flush and you dealt Miss Hogan two pair and you’re saying Miss Hogan should be bluffing more or Miss Hogan should be . . . putting in more chips. And the same with Miss Canty. Miss Canty would play the exact same hand you dealt her. I don’t find any basis to discharge the Public Defender’s Office who has been and remains attorney of record. The court then reiterated its reasons for denying the motion to continue the case because of the last minute attempt to switch to private counsel. It noted that there had been five continuances. Further, the notice and motion filed by private counsel did not state that counsel had a conflict, just that she would be out of the jurisdiction of the court. Because the private attorney’s office was in Broward County, she was out of the jurisdiction but without an actual conflict. The court made the finding that the motion to continue was made in bad faith or as a delay tactic. The judge also found that appellant would not suffer prejudice as a result of the denial because of the state of the case: As far as prejudice goes, it doesn’t matter if I continue this case and she hired a phalanx of six private attorneys, at the end of the day, she’s gonna say she was placed on probation, [the probation officer] instructed her, there’s a Probation Order in the file, there’s a certified copy of a judgment for a crime she committed while she’s on felony supervision, so we can—we can find that out today or we can find it out six months from now with a different set of attorneys. But there’s virtually no prejudice because this is what it is and it will never change, it will always be what it is. The hearing then proceeded with the presentation of the probation officer who testified that she personally instructed appellant on the conditions of her probation, the terms of which the court took judicial notice. The State moved into evidence, without objection, a certified copy of the Texas judgment and conviction for DUI. The State concluded its case, and the public defender offered no evidence. The court found appellant in violation of the condition that the probationer live without violating the law by committing a new crime, which the court found to be the most important of the conditions of probation. Noting that the standard of proof in a violation of probation proceeding was the greater weight of the evidence, the court found that the State more than met its burden. 3  While appellant scored 30.4 points and her lowest permissible sentence was any nonstate prison sanction, the court sentence her to four years, giving her the benefit of the State’s prior plea offer. Appellant appeals the judgment and sentence. Appellant argues that she was deprived of her Sixth Amendment right to counsel of her choice when the trial court denied her motion for continuance to allow her private attorney to appear. She did not mention the Sixth Amendment at trial, but the continuance was requested to secure counsel of her choice. In any event, the court did not abuse its discretion in denying the motion for continuance made the afternoon of the day before trial. A denial of a motion for continuance to obtain new counsel is reviewed for an abuse of discretion. Alvarez v. State, 75 So. 3d 420 , 422 (Fla. 4th DCA 2011). A defendant’s right to counsel of his or her choice is not absolute, and a court’s consideration of any continuance should balance the defendant’s right with consideration of the impact on the administration of justice. Id. Any denial of a continuance to obtain new counsel must be based upon an adequate inquiry into the circumstances with findings to assure that the defendant’s constitutional rights were not being deprived. Deal v. State, 145 So. 3d 212 , 214 (Fla. 4th DCA 2014). Factors relevant to that inquiry include whether the motion is made in bad faith or for the purposes of delay; whether it would prejudice the State; and whether the court’s schedule would permit a continuance. Id. In this case, the court made an adequate inquiry and articulated findings which clearly support its decision to deny the motion for continuance. The court found that the motion was in bad faith or for the purposes of delay, as five continuances has been requested for various reasons. The court found that appellant would not be prejudiced because of the narrow issue before the court, which required only the proof of the probation conditions and that appellant had subsequently been convicted of another crime. Furthermore, the public defender stated that she was prepared for the hearing. We have frequently addressed this issue. In Tyler v. State, 945 So. 2d 662 , 663-64 (Fla. 4th DCA 2007), we noted: This and other appellate courts have made clear that they will not permit the right to counsel to be used “for the sake of arbitrary delay or to otherwise subvert judicial proceedings.” Foster v. State, 704 So. 2d 169 , 173 (Fla. 4th DCA 1997) (citing Holley v. State, 484 So. 2d 634 , 636 (Fla. 1st DCA 1986)). 4  “Judges must be vigilant that requests for appointment of a new attorney on the eve of trial should not become a vehicle for achieving delay.” Id. Accord Jackson v. State, 979 So. 2d 442 , 445 (Fla 4th DCA 2008); Hurtado v. State, 760 So. 2d 279 , 280 (Fla. 4th DCA 2000); Foster, 704 So. 2d at 172–73. Although many of these cases reversed denials of motions for continuances to obtain new counsel, they did so because the trial court made no findings that the motion was made in bad faith or for delay. Here, in contrast, the court made that finding. Perhaps the case most on point to this fact situation is Bowman v. United States, 409 F.2d 225 (5th Cir. 1969), cited with approval in Foster. There, a defendant was being represented by court-appointed counsel. Id. at 226 . On the morning of trial, the court received a letter requesting a meeting in chambers. Id. At that meeting, attended by the prosecutor and the defendant, the defendant for the first time expressed dissatisfaction with his counsel, contending that counsel was not spending enough time on the case. Id. Defendant sought a continuance to obtain new counsel. Id. The trial court determined from counsel that he was indeed prepared to try the case and denied the continuance. Id. The appellate court affirmed, noting: We and other courts of appeals have repeatedly made clear that the right to counsel ‘cannot be * * * manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice.’ Judges must be vigilant that requests for appointment of a new attorney on the eve of trial should not become a vehicle for achieving delay. Id. at 226–27 (quoting United States v. Llanes, 374 F.2d 712 , 717 (2d Cir. 1967)). Similarly, in this case, appellant raised dissatisfaction of counsel for the first time on the morning of the hearing. The trial court made sufficient inquiry and determined that the motion to continue was in bad faith or for the purpose of delay. The trial court did not abuse its discretion in denying the motion for continuance. Appellant also contends that the court failed to follow the proper Nelson procedures for an inquiry where a defendant seeks to discharge counsel. However, a Nelson inquiry is required only where a defendant is seeking to discharge counsel and to obtain new court-appointed counsel. See Jackson v. State, 979 So. 2d 442 , 444 (Fla. 4th DCA 2008); Foster, 704 So. 2d at 172 . Here, as in Jackson and Foster, appellant did not request new court- appointed counsel but sought to be represented by private counsel. 5  In another attack on the proceedings at trial, appellant contends that the court prejudged her case and that this court should remand for proceedings in front of another judge. Because this issue was not raised below, we would have to find fundamental error to reverse. Mansueto v. State, 148 So. 3d 813 , 815 (Fla. 4th DCA 2014). We find no error, fundamental or otherwise, in the court’s comments. The court did not show predisposition when it rightly noted that the case was straightforward, requiring proof of the probation order and a certified copy of the Texas judgment. It simply noted “we can find that out today or we can find it out six months from now with a different set of attorneys.” That statement was not a predisposition to rule against appellant but to explain what proof would be presented. The remaining issues which claim to be errors as to the finding of violation were not preserved and, in any event, were not error. Appellant also claims that her scoresheet included 1.6 points for the Texas conviction as part of a “prior record.” We agree that this was error. Section 921.0021(5), Florida Statutes (2018), defines “prior record” as “a conviction for a crime committed by the offender, as an adult or a juvenile, prior to the time of the primary offense.” (Emphasis added). Upon revocation of probation, “[s]entences imposed after revocation of probation or community control must be imposed according to the sentencing law applicable at the time of the commission of the original offense.” Fla. R. Crim P. 3.704(d)(31). “To be scored as prior record the offense must have been committed prior to the commission of the primary offense.” Sanders v. State, 35 So. 3d 864 , 871 (Fla. 2010). Here, the primary offense was the 2012 Florida DUI conviction. The Texas conviction occurred well after the primary offense. Therefore, for purposes of the scoresheet those points should not have been included as a prior record. Id. Nevertheless, a scoresheet error is harmless where “the record conclusively shows that the trial court would have imposed the same sentence using a correct scoresheet.” Brooks v. State, 969 So. 2d 238 , 241 (Fla. 2007). A review of the sentencing convinces us beyond any doubt that the court would have imposed the same sentence in this case. 6  We find no merit in appellant’s claim that the court considered an improper factor—namely incapacitation—in sentencing her. 2 While the prosecutor argued that because of appellant’s many DUI convictions she was a danger and incarceration was necessary to protect the public, the trial court did not make any statement regarding protection of the public. But, even if the court had, such a consideration would have been entirely proper. See State v. Brewer, 767 So. 2d 1249 , 1253 (Fla. 5th DCA 2000) (Harris, J., concurring) (explaining that the four penological goals in sentencing are: retribution, deterrence, incapacitation and rehabilitation); Charles v. State, 204 So. 3d 63 , 66-67 (Fla. 4th DCA 2016) (collecting cases that discuss legitimate sentencing considerations, including incapacitation and protection of society). Protecting society is a legitimate consideration in sentencing. Finally, as the State concedes, the written order of revocation must be amended to reflect that the court found appellant in violation only for committing the new law offense. We agree and remand for the trial court to strike the findings for violation of condition (1), which the court dismissed at the hearing. The court did not find violations of the remaining conditions, and no evidence was presented as to these: condition (5) (to the extent that this violation was based upon the illegal consumption of alcohol); both findings as to condition (2); condition (10); condition (3); condition (4); and condition (7). Therefore, they also must be stricken from the order of revocation. As to any remaining issues not specifically addressed in this opinion, we affirm. Affirmed but remanded to correct order of revocation. LEVINE, C.J., and ARTAU, J., concur. * * * Not final until disposition of timely filed motion for rehearing. 2We consider this issue preserved, because the rule 3.800(b)(2) motion filed during the pendency of this appeal included this argument. 7