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2020-11-20 19:20:35.556346+00

Florence Pearlman, Transferee, Petitioner, v. Commissioner of Internal Revenue, Respondent Pearlman v. Commissioner Docket No. 112500 United States Tax Court September 27, 1944, Promulgated *56 Decision will be entered under Rule 50. 1. A resident of Pennsylvania, after becoming hopelessly insolvent, designated his wife as first beneficiary in several policies of insurance on his life, in substitution for his executors, administrators, or assigns. At the time of his death the insured was insolvent. Proceedings were then pending involving deficiencies in his income tax for several years. The proceedings were dismissed and the deficiencies were upheld. After the death of the insured the insurance companies issued claim settlement certificates in the aggregate amount of more than $ 200,000, under which decedent's widow is receiving substantial monthly payments and under which she has various options having substantial value. By the law of Pennsylvania, as construed by its courts, a change of beneficiary under such circumstances is fraudulent and void as to creditors. Fidelity Trust Co. v. Union National Bank of Pittsburgh, 313 Pa. 467">313 Pa. 467. Held, the widow, petitioner herein, is liable in equity as a transferee for the income tax of her deceased husband. 2. Petitioner's husband, during his lifetime, kept no personal books of account. *57 For several years prior to the taxable years he had carried on business under a trade name, during which period he had borrowed $ 135,000 from two banks. The business was wholly inactive during most of the taxable years, but its books of account, on accrual basis, reflected the amounts owing to the banks, and interest on the loans was accrued annually. No interest was paid by the debtor or his "business" on the bank loans during the taxable years and no interest was paid by the debtor on other amounts owing by him, although he had substantial income. Held, the Commissioner properly disallowed the deduction of amounts claimed by the debtor as interest accrued upon indebtedness. Berryman D. Fincannon, 216">2 T. C. 216, distinguished. Nathan Silberstein, Esq., and M. Wolf, Esq., for the petitioner. Myron S. Winer, Esq., for the respondent. Mellott, Judge. MELLOTT *35 The Commissioner determined that petitioner is liable, as transferee of assets of Martin M. Pearlman, deceased, "for deficiencies of income taxes due from the Estate of Martin M. Pearlman, Deceased," as follows: 1934$ 3,022.49 19352,633.84 19362,813.66 19375,665.46 19409,822.97 *58 In the answer it is alleged the Commissioner "erroneously and inadvertently failed to assert liability" for the additional amount of $ 1,755.15, this being the unpaid balance of the tax shown to be due by Pearlman's return for 1940. The aggregate amount in issue is therefore $ 25,713.57. The principal question is whether petitioner, as the primary beneficiary of proceeds of insurance on the life of her deceased husband, Martin M. Pearlman, the annual premiums of which were paid by him during his lifetime, is liable in equity as transferee for his unpaid income tax for the calendar years 1934 to 1937, inclusive, and 1940, together with statutory interest thereon. A subsidiary question, in the event petitioner is liable as a transferee, is whether the liability of the deceased was less than the amount determined by the respondent *36 The facts are found to be as stipulated. Others shown in our findings are based upon admissions in the pleadings, documents received in evidence at the hearing, or concessions made by the parties. FINDINGS OF FACT. Petitioner is the widow of Martin M. Pearlman (hereinafter referred to as Pearlman), who died in Philadelphia, Pennsylvania, on March*59 11, 1941, insolvent and without any estate. Petitioner was born April 10, 1882. In Pearlman's income tax returns for the calendar years shown below he deducted, as interest, the following amounts: Interest on YearbusinessOther interestTotal interest indebtedness 1934$ 8,212.50$ 18,703.04$ 26,915.54 19358,212.5018,764.4026,976.90 19368,212.5021,863.2130,075.71 19378,212.5019,122.0627,334.56 19408,212.5018,695.6826,908.18 All of the deductions were disallowed except approximately $ 1,700 for the year 1940. The correctness of the disallowance of the amounts shown under the heading "Other interest" is not in issue. 1 *60 The amounts shown in the column "Interest on business indebtedness" represented accruals of interest entered on books of account of M. M. Pearlman and Co. on notes to Tradesmen's National Bank & Trust Co. ($ 75,000) and to Philadelphia National Bank ($ 60,000), aggregating $ 135,000. Pearlman did not maintain any books of account (other than a check book) at any time except those in the name of M. M. Pearlman and Co. M. M. Pearlman and Co. was a mere trade name. It "was conducted as a partnership until December 31, 1926." Thereafter it "was the trade name under which Martin M. Pearlman individually conducted an active business in the purchase and sale of metals * * * until 1931." During the period from 1917 to 1931 the books of M. M. Pearlman and Co. were kept on a basis according to which all bills received for money owed by it were entered when the bills were received and deducted as expenses in such years, although a great many of these bills, both for materials and for expense items, were not paid until the following years. Similarly, merchandise sold was entered as an account receivable when the sales were made and reported in income for such years, although in many cases *61 payment was not received *37 until the following year. In all cases the purchases, sales, and accounts payable and receivable were entered on that basis. In 1931 the company was inactive and so remained until 1937. From 1937 until Pearlman's death the activity of the company was on a much reduced scale. On the books of account of M. M. Pearlman and Co. for the years 1934 to 1940, inclusive, there was accrued each year interest payable in the amount of $ 8,212.50 representing interest on the loans to the above named banks in the aggregate amount of $ 135,000. By December 31, 1929, Pearlman had withdrawn funds from M. M. Pearlman and Co. in excess of $ 135,000, which funds were charged to his drawing account on the books of M. M. Pearlman and Co. During the period from 1931 to 1940, inclusive, each year there were accruals of interest entered on the books of M. M. Pearlman and Co. in the annual amounts of $ 8,212.50. These items appeared in an account designated "Interest and Discount" and a liability account designated "Accounts Payable." By December 31, 1932, the latter account was made up only of accrued interest on the two loans, and it so continued until December 31, 1937. *62 On that date the credit balance in that account was split and credited to liability accounts in the name of each bank ($ 20,390 and $ 25,487.50). From then until December 31, 1940, the accrued interest was recorded each year in the new liability accounts. "Prior to Dec. 31, 1926, interest on notes representing loans from the Philadelphia National Bank and the Tradesmen's National Bank and Trust Co. was charged to, paid by, and shown on the books of M. M. Pearlman and Co., a partnership. During the period from Dec. 31, 1926 to October 1, 1930, interest on notes representing loans from said banks was charged to, paid by, and shown on the books of M. M. Pearlman and Co. solely owned by Martin M. Pearlman during that period of time. "Prior to the year 1927 the ledger of M. M. Pearlman and Co., a partnership, shows the repeated use of inventory accounts in the determination of the periodical profit or loss resulting from operations in the 'Zinc skimmings,' 'Salamoniac skimmings,' and 'Dross' accounts. Dealing in these commodities and in lead constituted the bulk of the business of M. M. Pearlman and Co. At no time did M. M. Pearlman and Co. have a warehouse for the storage of merchandise, *63 and consequently contracted for its sales and purchases simultaneously, in all cases shipping the merchandise directly from its seller to its buyer. During the years 1927 to 1941, inclusive, M. M. Pearlman and Co. had no unsold merchandise on hand at the end of any year, and accordingly recorded no inventories on its books at the end of such years except in the year 1940, when an inventory of $ 478.02 was recorded. It was subsequently found that the merchandise so inventoried had *38 actually been sold prior to December 31, 1940, so that the entry was erroneous, and the inventory was eliminated by the Revenue Agent who examined the books for that year." During the years M. M. Pearlman and Co. was active -- i. e., prior to 1931 -- its books and records showed substantial amounts in accounts receivable and payable. No accounts receivable existed after December 31, 1930. Accounts payable reflected only interest on the loans of Philadelphia National Bank and Tradesmen's National Bank & Trust Co. No part of such interest was ever paid by Pearlman or anyone else. In Pearlman's returns for the years 1934, 1935, and 1936, line 9 -- "State whether your books are kept on cash or accrual*64 basis" -- is left blank. In his returns for 1937 and 1940 it is indicated they were "prepared on an accrual basis." Notwithstanding the fact that in some of the returns commissions earned rather than commissions received were reported in gross income, it can not be found that Pearlman's returns were made on other than a cash basis. By notice dated February 27, 1940, the Commissioner determined deficiencies in Pearlman's Federal income taxes for the calendar years 1934, 1935, 1936, and 1937 in the respective amounts of $ 3,022.49, $ 2,633.84, $ 2,813.66, and $ 5,665.46. On May 18, 1940, Pearlman filed a petition with this tribunal requesting redetermination of the deficiencies. Motion to dismiss for lack of prosecution was granted on May 31, 1941, and deficiencies in the amounts shown above were determined. After Pearlman's death, but before the order of May 31, 1941, was entered, jeopardy assessments were made; but no portion of the taxes has ever been collected. Pearlman's income tax return for the year 1940 was acknowledged by him on the date of his death (March 11, 1941) and filed in the office of the collector of internal revenue at Philadelphia on March 13, 1941. The tax*65 shown to be due thereon was $ 2,340.20. The first payment shown on the face of the return and transmitted to the collector was $ 585.05. The difference between the amount shown to be due and the amount received, or $ 1,755.15, is the amount sought in the respondent's answer in addition to that set out in the notice of liability herein. The net income shown to be due by Pearlman's return for 1940 was increased by the amount of interest shown above ($ 25,164.67). This resulted in a deficiency of $ 9,822.97 for that year. The total liability in controversy is therefore: 1934$ 3,022.49 19352,633.84 19362,813.66 19375,665.46 194011,578.12 Total      25,713.57 *39 Numerous policies of insurance (apparently 24) were in effect at the time of Pearlman's death. Three, aggregating $ 150,000, according to the estate tax return, had been taken out by a company of which Pearlman was president. Five, aggregating $ 400,000, were payable to a creditor whose debt exceeded that amount. The proceeds of the 8 policies were paid over to the named beneficiaries and are not in issue here. The remaining 16 policies may be divided into three groups. GROUP I. CompanyPolicy No.Face amount Prudential Insurance CoG. 4605$ 2,500 Equitable Life Assurance Society14040042,500 Do   19232482,500 Do   225915110,000 Continental Casualty Co73378081,100 Total     18,600 *66 The face amounts of the policies shown in this group were paid to petitioner after the death of her husband. No other details in connection with these policies are shown. GROUP II. CompanyPolicy No.AmountPaid to -- Prudential Insurance Co5362871$ 300,000Morris Wolf On February 2, 1934, Morris Wolf, as trustee, became the holder and owner of the debt of Pearlman and the Florence Realty Co., a real estate holding company to Wolf Bros. & Co., which debt on said date, including interest, amounted to about $ 450,000. The collateral for the debt, pledged some time prior to October 1, 1930, consisted of 585 shares of preferred and 1,550 shares of common stock of Superior Zinc Co.; two-thirds interest in premises at the northwest corner of Broad Street and Columbia Avenue; one-half interest in premises at 1726 and 1734 North Broad Street, represented by shares of stock of Barrie Realty Co.; one-third interest in premises 1736-1738 North Broad Street, in connection with which there was due one-third of $ 252,027.55, with interest from September 19, 1931; and the life insurance policy above referred to. The Superior Zinc Co. stock was carried as an asset on the*67 books of M. M. Pearlman and Co. from December 31, 1927, to December 31, 1940. Pearlman and the Florence Realty Co. made default on the above obligation to Wolf Brothers & Co. On December 16, 1936, Morris Wolf, as trustee, declared the entire balance of approximately $ 500,000, including interest, due and payable. On December 24, 1936, all of the *40 above collateral was sold to Morris Wolf, as trustee, for $ 100,000. After Pearlman's death the face amount of the policy was paid to Wolf. The proceeds of the policies shown in group III were, to the extent hereinafter shown, made available to petitioner by the death of her husband, as a result of which she is now receiving, and since March 11, 1941, has received, monthly payments aggregating $ 673.67. The following schedule shows the ten policies, the date each was issued, the face amount, the annual premium, the beneficiary named in the policy when issued, and the cash surrender value of each policy on the date of Pearlman's death. GROUP III. PolicyDateFaceAnnual Insurance companyNo.issuedamountpremium 1New York Life40265297/17/1907$ 10,000$ 335.20 2New York Life73367238/19/191625,000846.25 3New York Life73367248/19/191625,000843.75 4Prudential228013412/20/191625,000608.75 5New York Life120127763/24/193325,0001,383.75 6New York Life120127773/24/193325,0001,383.75 7New York Life120127783/24/193325,0001,383.75 8New York Life104618503/24/193325,0001,408.75 9Prudential39254484/28/192825,000818.50 10Sun Life of Canada14757987/11/1935100,0004,708.00 Total    13,720.45 *68 GROUP III. Cash Insurance companyNamed beneficiarysurrender value 3/11/41 1New York LifeWife$ 6,856.40 2New York LifeWife11,889.25 3New York LifeWife11,889.25 4PrudentialWife10,435.96 5New York LifeEx., adm., or assigns *5,530.25 6New York LifeEx., adm., or assigns 5,632.50 7New York LifeEx., adm., or assigns 5,731.50 8New York LifeEx., adm., or assigns 5,828.75 9PrudentialWife9,452.67 10Sun Life of CanadaWife and daughters28,818.00 Total    102,064.53 The policies will hereinafter be referred to by the numbers shown on the left in the schedule above. Pursuant to an agreement dated October 1, 1930, 2 Pearlman (his wife joining) on or about that date assigned and transferred to J. William Hardt, trustee, for the benefit of his creditors, the assets listed on Exhibit A attached to the agreement. The property in Exhibit A was substantially the same as hereinafter shown. The creditors listed held claims against Pearlman aggregating approximately $ 548,000. Another, in the amount of $ 53,522.25, was*69 added on July 1, 1931. On the latter date a supplemental agreement was signed, the creditors waived default in payment then occurring, and agreed to accept new notes payable on or before December 31, 1931, with interest at 6 percent. The trust agreement was amended to provide that if $ 100,000 had not been paid on account by December 31, 1931, and if the trustee thought it would be advantageous to creditors, new notes, payable on or before July 1, 1932, should be accepted. *41 "On January 1, 1934, Pearlman, as maker or as guarantor, was indebted to the following creditors in the following amounts, not including interest thereon: Central National Bank$ 40,000.00  Integrity Trust Company50,000.00  Bankers Trust Company45,000.00  Franklin Trust Company46,000.00  Colonial Trust Company45,000.00  Southwark National Bank45,000.00  Corn Exchange National Bank24,000.00  Philadelphia National Bank60,000.00  Tradesmen's National Bank and Trust Co75,000.00  Kraus Building and Loan Association47,481.25  Lillian Building and Loan Association23,737.50  Gordon Building and Loan Association11,768.75  Randall Building and Loan Association35,681.25  Hackenburg Building and Loan Association53,522.25  Wolf Brothers and Company409,750.00  Total     1,011,941.00" *70 From October 1, 1930, to October 20, 1933, Hardt, as trustee, had cash receipts in the sum of $ 114,025.69. This represented the proceeds from liquidation of Pearlman's assets, plus interest on the trustee's bank account. From October 21, 1933, to the date of Pearlman's death, Hardt, as trustee, had cash receipts from liquidation of the remaining assets of the trust in the amount of $ 3,718.27. No interest or any portion thereof was paid by Pearlman or anybody else on the obligations shown above after May 31, 1932. No part of the principal of said obligations was paid by Pearlman or anybody else prior to his death, other than as shown above in connection with the obligation of Pearlman and Florence Realty Co. to Wolf Bros. & Co. Pursuant to the Trust agreement of October 1, 1930, and the supplemental agreement of July 1, 1931, Pearlman had executed and delivered to each of the creditors, other than Wolf Bros. & Co., promissory notes payable on December 31, 1931, with interest at 6 percent. On December 23, 1937, prior to the expiration of the period of limitations for collection of the notes, they were canceled and returned to Pearlman who in turn made, executed and delivered to*71 the creditors new notes dated December 23, 1937, in the same amounts, payable on demand, with interest at 6 percent. As of January 1, 1933, Pearlman was insolvent to the extent of a sum in excess of $ 500,000, and he remained insolvent at least to that extent at all times subsequent thereto. *42 As of October 21, 1933, the assets remaining in the trust estate under the agreement of October 1, 1930, had the following values: Item No.ItemValue 1$ 10,200 principal amount Liberty bonds (subject to pledgeProblematical. for $ 9,450)  21,000 shares United Zinc Smelting Corporation, 55c per3 $ 55.00. share  3Had been sold 4Claim for damages against Newburger, Henderson and LoebProblematical. 5Had been paid (Vigilant Champion Building & Loan Association)  6Aarons notes had been paid 7Columbia Building -- no equity 8Florence Realty Co. shares of stockNo value. 9585 shares preferred and 1,550 shares common stock of Superior Zinc Co. (subject to pledge for amounts owed Wolf  Brothers & Co.) no equity.  10Account payable by Florence Realty Co. to Florence PearlmanNo value. for $ 16,502.55  11Account payable by 1015 Chestnut Street Corporation ofNo value. $ 24,500  12Life insurance policy No. 5362871 in the sum of $ 300,000No value in Prudential Life Insurance Co., subject to prior  assignments to Wolf Brothers & Co.  13Life insurance Policy No. 1103602 in the sum of $ 100,000Problematical. in Sun Life Assurance Co. of Canada -- unpaid premiums  outstanding for 1 1/2 years.  14The following policies of insurance in Equitable Life Insurance Co., subject to loans as of October 1, 1930, of  less than $ 30,000:  No. 3056767 for $ 150,000 No. 3628124 for $ 100,000 No. 2927920 for $ 25,000 No. 2932628 for $ 25,000 As these premiums were paid by trustee from liquidation ofProblematical. assets held by him under the trust agreement aforesaid,  trustee had in his possession sufficient cash to pay  premiums up to early part of 1934.  15Earnings of Martin M. Pearlman & CoProblematical. Total$ 55.00 *72 The antecedent history of the four policies shown on lines 5, 6, 7, and 8 is as follows: On December 10, 1928, Pearlman took out a policy of term life insurance in the face amount of $ 100,000. Medical examination was required and Ten Fifteen Chestnut St. Corporation was the named beneficiary. The insured had the right to change the beneficiary. The policy provided it might be exchanged, "not later than 5 years from the date on which it takes effect, upon written request from the insured * * * without medical examination" for insurance upon the ordinary life plan. Such request was made and on March 24, 1933, four such policies in the face amount of $ 25,000 each were issued, payable to "The Executors, Administrators or Assigns of the Insured or to the Duly Designated Beneficiary." Loans were made upon the policies as hereinafter shown. The policies shown on lines 1, 2, and 3 were issued on the dates shown, *73 Pearlman's wife, petitioner herein, being the named beneficiary. Pearlman had the right to change the beneficiary in each policy. On May 3, 1932, the beneficiary in each was changed to "The Executors, Administrators or Assigns" and endorsements to that effect were made on the policies. On May 5, 1932, the insurance company was named as trustee in each policy. The appointment was revoked January 30, 1933. On March 28, 1933, the insurance company was again appointed *43 trustee under each policy; but the appointments were revoked on May 25, 1933. Under date of November 29, 1933, Pearlman filed with the insurance company a lengthy "Settlement Agreement," attached to and forming a part of each of the seven policies, designating his wife, petitioner herein, as first beneficiary, with several options, and his four daughters as second beneficiaries. The policy shown in line 10 stems from a policy (No. 1107506) of $ 100,000 which was issued to Ajax Hosiery Mills by Sun Life Assurance Co. of Canada on February 7, 1929, on Pearlman's life. Policy No. 1107506 was assigned on September 8, 1932, and on April 24, 1934, by Ajax Hosiery Mills to Merchant's Transfer & Storage Co. On March*74 5, 1935, and on March 26, 1935, Merchant's Transfer & Storage Co. and Ajax Hosiery Mills, respectively, assigned it to Pearlman. On March 6, 1935, Pearlman requested the insurance company, without consideration, to change the beneficiary to his wife, petitioner herein. On March 25, 1935, he requested, without consideration therefor, that the beneficiary be changed in accordance with a settlement agreement. The settlement agreement provided that the proceeds, after deduction of indebtedness, should be left with the company and bear interest in accordance with option 1, and that Florence Pearlman should have certain options (election to receive five-twentieths or seven-twentieths in monthly payments, additional elections at age 65, etc.). At her death the remaining proceeds are to be divided into equal shares for the surviving children. In a letter addressed to Sun Life dated June 14, 1935, Pearlman requested that a new policy be issued in place of Policy No. 1107506. The letter stated, inter alia: * * * My reason is that I prefer not to have the Ajax Hosiery Mills appear on this policy since this policy has been assigned to me and I am paying the premiums, also having taken*75 over the loan that was on it, and I see no reason why this policy should not be rewritten direct to me, which, for personal reasons, I prefer to have done. * * * On July 2, 1935, Pearlman agreed "to cancel and surrender to the Company the dividends that have been accumulated to the credit of this policy (No. 1107506) in consideration of the transfer of such dividends to the new policy." The "Amount of Discharge" was stated (in the special discharge form signed by him) to be $ 30,602, which he agreed should "be applied against the premium on a new policy on the life of the assured." On July 11, 1935, the policy shown on line 10 above (Policy No. 1475798) was issued. It recited it was being "issued in consideration of the application therefor and of a premium of $ 1,177 to be paid to *44 the company on the fourth of February 1929 and the payment to it of a like amount quarter yearly thereafter on the fourth day of May, August, November and February in every year during the continuance of this policy." A policy loan agreement purporting to have been made on the 21st day of June 1935 recites that the Sun Life Assurance Co. had that date loaned to Pearlman, "the party assured under*76 the Policy No. 1475798," the sum of $ 12,500.72. The loan agreement was canceled February 29, 1936, upon the payment of $ 13,014.21. Pearlman, except as otherwise shown above with reference to the Sun Life policy, paid all premiums on the policies from the dates taken out to the date of his death. Loans had been obtained upon most of them, some of which had been repaid prior to the dates and transactions shown below. Loans paid off on or about February 25, 1936, were: Policy line 1Borrowed July 22, 1924$ 3,960.00 Increased Mar. 11, 1929660.00 4,620.00 Policy line 2Borrowed Apr. 1, 19358,525.00 Policy line 3Borrowed July 22, 1924$ 3,650.00 Increased Mar. 8, 19291,925.00 Increased May 18, 1931975.00 Increased Apr. 1, 19351,975.00 8,525.00 Policy line 4Details not shown (paid to redeem 2/25/36)7,636.58 Policy line 5Borrowed Sept. 5, 19351,575.00 Policy line 6Borrowed Nov. 7, 19351,574.00 Policy line 7Borrowed Nov. 7, 19351,574.00 Policy line 8Borrowed Apr. 25, 19351,575.00 Policy line 9Details not shown (paid to redeem 2/25/36)6,728.56 Total      42,333.14 Policy line 10Details shown in preceding paragraphs of the findings13,014.21 Total      55,347.35 *77 On February 24, 1936, Pearlman assigned the ten policies of insurance to the Market Street National Bank of Philadelphia as collateral security for a loan to him of $ 57,300. The proceeds of this loan were largely used in the payment of the outstanding loans on the policies. Pearlman's income for the years 1933 to 1940, inclusive, consisted of salaries and commissions in the respective amounts of $ 32,570.09. $ 27,540.48, $ 25,689.70, $ 26,546, $ 41,356.75, $ 27,492.68, $ 35,842.74, and $ 47,214.16. After Pearlman's death proofs were filed with the insurance companies under the ten policies. Settlement was made as follows: *45 Paid toClaim Marketsettlement StreetcertificateTotal Nationalin amount Bankof -- New York Life policies shown lines 1, 2, 3, 5, 6, 7, and 8 $ 65,000$ 95,533.25$ 160,533.25 Prudential policies shown lines 4 and 950,208.7550,208.75 Sun Life policies shown line 10100,639.00100,639.00 Total     311,381.00 The claim settlement certificates, though differing in form, provide for the payment of interest on the amounts held to Florence Pearlman unless she exercises the options -- i.e., to receive five-twentieths*78 of principal amount during 10, 15, or 20 years in accordance with a table; or some other amount (seven-twentieths) in monthly installments during 20 years; or after April 10, 1947, that she elects to receive installments, payable as long as she may live, in accordance with another table. Provision is made in each certificate for the disposition of the remaining amount, if any, to the daughters and grandchildren of Pearlman and his wife upon the death of the wife. "During the period from March 11, 1941, to the present time, monthly payments have been made to Florence Pearlman, as beneficiary of the ten (10) policies of insurance on the life of Martin M. Pearlman * * * as follows: Rate ofMonthlyAnnual "Insurance CompanyDepositinterestpaymentspayments Sun Line Assurance Company of Canada$ 100,639.003 1/2%$ 293.56$ 3,522.72  The Prudential Insurance Company of America 50,208.753 1/2%144.141,729.68  New York Life Insurance Company95,533.253%   235.972,831.64  Total    246,381.00673.678,084.04" The aggregate payments realizable by petitioner through the exercise of the options in the certificates of claim were: AggregateTotal Sun LifeNew YorkPrudentialannualpayment for LifeLifepaymentperiod 1st to 6th years, incl $ 6,807.22$ 6,111.45$ 3,372.02$ 16,290.69$ 97,744.14 7th to 10th years, incl 9,026.108,377.884,479.0321,883.0187,532.04 11th to 20th years, incl 6,058.265,623.663,011.9214,693.85146,938.50 Total      332,214.68 *79 The value, on the date of the death of Pearlman, of petitioner's right to receive the annual payments under the policies shown in lines 5, 6, 7, 8, and 10 was in excess of the liability asserted herein. (See footnote 6, infra.) *46 OPINION. As indicated at the outset, the issue is whether petitioner, under the facts, is liable in equity for the income taxes of her deceased husband. The applicable statute is shown in the margin. 4 *80 Although many cases have been decided under the transferee provisions of the statute, this is the first in which the precise question now before us has arisen. Beneficiaries under life insurance policies, however, have been held liable for the estate tax where the tax sought to be collected arose because of the inclusion in gross estate of the proceeds of insurance in excess of $ 40,000, Edna F. Hays et al., Executors, 34 B. T. A. 808; the widow of a deceased has been held liable, as a transferee, for the income tax of her husband where the proceeds of insurance policies on his life, payable to his estate, had been set aside to her by the probate court under a state statute, May R. Kieferdorf, 1 T.C. 772">1 T. C. 772; affd., Kieferdorf v. Commissioner, 142 Fed. (2d) 723; and the Court of Appeals for the District of Columbia has reversed our holding ( John Hancock Mutual Life Insurance Co., 42 B. T. A. 809) that insurance companies with which the proceeds had been left pursuant to the terms of the policies and of settlement agreements were transferees under section 316*81 of the Revenue Act of 1926, pointing out that Congress had obviously intended "that the beneficiary alone was to be liable in the case of the insurance estate." John Hancock Mutual Life Ins. Co. v. Helvering, 128 Fed. (2d) 745. The cited cases, while not determinative of the present issue, lend a modicum of support to respondent's contention, expressed upon brief in the following language: Pearlman intended to make a most unreasonable provision for his wife and to wholly disregard the claims of his creditors. He was fully apprised of his inability to pay his debts which were in excess of $ 1,000,000 when he undertook to secure to her by the expenditure of his own means, an estate in the form of insurance on his life in an amount in excess of $ 300,000. In so doing, he converted to her benefit, in the payment of premiums, large sums of money in each year which in good conscience should have been paid to his creditors. The circumstances connected with the transactions that occurred during his insolvency * * * leave no doubt but that he had determined to provide for his wife and children in total disregard of the rights and claims of creditors. *82 *47 The premiums which secured the policies and kept them alive were part of his estate and were diverted from the payment of his debts to investments for his wife and children. He was hopelessly insolvent [when the beneficiaries were changed], his insolvency continued at all times subsequent * * * [and] the transfers were without consideration and void and fraudulent as against his creditors, including the United States Government. * * * At the death of Pearlman, petitioner, as donee beneficiary, acquired valuable property rights or choses in action against * * * [the insurance companies]. [She therefore became] the trustee of a constructive trust for the benefit of his creditors, was bound in equity to exercise the rights conferred upon her as primary beneficiary, * * * [and is therefore] liable for the full amount of his unpaid tax liability. Both parties recognize that the transferee provisions create no new liability, but merely provide a new remedy for enforcing an existing liability at law or in equity. Phillips v. Commissioner, 283 U.S. 589">283 U.S. 589; Hulburd v. Commissioner, 296 U.S. 300">296 U.S. 300. Also that the liability*83 is to be tested primarily by the law of the state of the domicile, in this instance Pennsylvania. The first charge made by the respondent, in our judgment, is without substance. "* * * the law does not prevent an insolvent from carrying insurance for the benefit of his wife, children, or other dependent relatives." Irving Bank v. Alexander, 280 Pa. 466">280 Pa. 466; 124 Atl. 634, 635. We pass, then, to consideration of the argument of the parties directed to what seems to be respondent's major contention, that the assignments of the policies -- i. e., the changes of beneficiaries to petitioner or to the insurance companies for her benefit -- were in fraud of creditors, including the Government. Before doing so, however, it should be stated that this contention is wholly without foundation as to the two Prudential policies 5 and it is at least doubtful whether it is sound as to the three New York Life policies, taken out by Pearlman in 1907 and 1916. 6 In the last mentioned, petitioner, or the insurance company as a trustee for her, was at all times the named beneficiary except for a two-day period in 1932 and two brief periods *84 in 1933. Cf. Newman v. Newman, 328 Pa. 552 (1938); 198 Atl. 30. In the Prudential policies, however, she was at all times either the named beneficiary or the one to whom payments were to be made during her life. Briefly restating the facts with reference to the other five policies, four of them 7 stemmed from a $ 100,000 policy which had been issued*85 *48 to the Ten Fifteen Chestnut St. Corporation. They were payable to Pearlman's executors, administrators, or assigns until long after he had become insolvent. The $ 100,000 policy issued by the Sun Life Assurance Co. of Canada to the Ajax Hosiery Mills Co. had been assigned by the latter company to one of its creditors as security for an indebtedness. Petitioner had no rights under it until March 25, 1935, when she was named as principal beneficiary, at which time the insured was hopelessly insolvent. The first case relied upon by respondent to support his view that the changes of beneficiary were in fraud of creditors is Appeal of Elliott's Executors, 50 Pa. 75">50 Pa. 75 (1865). The deceased had effected four policies on his life, each for $ 10,000, three of which were assigned to a trustee for the benefit of his wife. The three assignments, the court pointed out, "were all voluntary, and would have been good against heirs, devises or legatees; but here the decedent*86 died insolvent, and the question is, are they good against creditors." Holding that they were not, the court said: The testator was hopelessly insolvent in 1859 and for some time previous. The insurances were effected in February and March of that year, assigned on 10th September following, he dying two months afterwards, when the policies became due and payable. The assignments do not appear to have been known to the trustee or cestui que trusts, certainly not to his creditors, who were apparently first aware of his situation by the developments succeeding his decease. We can therefore have no difficulty in holding these assignments fraudulent and void, and that the proceeds of the policies belong to creditors and estate of the decedent. The next case cited by respondent is In re McKown's Estate, 198 Pa. 96">198 Pa. 96 (1901). McKown had taken out a policy of $ 10,000 in the Manhattan Life Insurance Co. upon his life, payable to his executors, administrators, or assigns. Ten years later, while insolvent and at a time when he was largely indebted to the issuing company for defalcations while one of its agents, he assigned the policy to his*87 wife. The court held: * * * At the time McKown made this voluntary assignment of the policy to his wife, he was admittedly insolvent. The burden of proof is, therefore, upon her to show the bona fide character of the transaction and to repel the presumption of fraudulent intent as to creditors. * * * The third and principal case is Fidelity Trust Co. v. Union National Bank of Pittsburgh (1933), 313 Pa. 467">313 Pa. 467; 169 Atl. 209. The facts are quite involved. Briefly, a banker had engaged extensively in speculation, part of which had been unlawful. More than a half million dollars in insurance was paid after his death to trustees for his wife, the assignment of the policies having been made to the trustees at a time prior to his insolvency and no contention having been made that it was fraudulent. The major issue before the court involved three additional policies in the total amount of $ 275,000, taken out by the *49 insured in March and April 1929 and assigned to the same trustees in October 1929 after he had become insolvent. The court held that the latter assignments were made "with actual intent, as distinguished*88 from intent presumed by law (Section 7 [Uniform Fraudulent Conveyance Act]) to hinder, delay and defraud creditors. If, however, we did not reach that conclusion, we should be obliged by the record to find that the conveyances are condemned by Sections 4, 5 and 6 [of the same act]." The court's later recitation of the facts, which need not be repeated here, supports its conclusion. It said, inter alia: The appellee beneficiaries contend that the donor withdrew nothing from his creditors to pay premiums, and that, as creditors had no claims to the loan or cash surrender values of the policies at the time of the conveyances, nothing was taken from them by changing the designation of beneficiary. This argument disregards the true nature of the transaction. Each policy was a chose in action, an obligation to pay the insured's legal representatives on his death if he complied with the conditions of the policy. That obligation was of value to the insured's creditors; he was able to borrow on the policies, and the proceeds, when received by his executors, would help pay his debts. In re McKown's Estate, 198 Pa. 96">198 Pa. 96, 47 A. 1111">47 A. 1111; In re Huff's Estate, 299 Pa. 200">299 Pa. 200, 205, 149 A. 179">149 A. 179;*89 Burnet v. Wells, 289 U.S. 670">289 U.S. 670, 679, 53 S. Ct. 761">53 S. Ct. 761, 77 L. Ed. 1439">77 L. Ed. 1439. By conveying that asset in fraud of creditors' rights, a constructive trust resulted for their benefit; on familiar principles, applied in tracing trust property, they may follow the asset in whatever form it takes, which, in this case, is the fund in the custody of the trustees. In October, 1929, the donor could not, with reason, have considered that he had not provided adequate insurance for his wife and children, because they were then, under the trust agreement, the beneficiaries of insurance greatly in excess of $ 500,000 and his own affairs were in very precarious condition. In addition, his wife was the beneficiary of a $ 25,000 policy, not deposited under the trust agreement. From the circumstances referred to, we think only one inference is permissible, and that is that the donor actually intended to deprive his creditors of their expectancies in the policies. No other inference will explain or reasonably account for the gift. The reservation of the right to deal with the policies as his own is some evidence of the actual intent to hinder, *90 delay, and defraud his creditors. If he intended only to benefit his family, it was unnecessary to reserve power to revoke and to appoint to others. Cf. Mitchell v. Stiles, 13 Pa. 306">13 Pa. 306, 309. Petitioner expresses the view that the decision, "solely on the basis of the Fraudulent Conveyance Act, without any consideration of the later act of 1923, 8 which sets forth so definite and important an exception to the Fraudulent Conveyance Act, was completely ununderstandable." She sets out in considerable detail the antecedent history *50 of the act of 1923 and the decisions under the earlier acts in an attempt to prove that "the more than fifty years established policy of the state [is] that the transfer of insurance policies by an insolvent was to be an exception to the Fraudulent Conveyance Act." Whether that is so can best be determined by examining the later cases by the Supreme Court of Pennsylvania. Freuler v. Helvering, 291 U.S. 35">291 U.S. 35; Blair v. Commissioner, 300 U.S. 5">300 U.S. 5; Erie Railroad Co. v. Tompkins, 304 U.S. 64">304 U.S. 64; Helvering v. Stuart, 317 U.S. 154">317 U.S. 154.*91 Four cases have been decided by that court since the Fidelity Trust Co. case in which creditors have endeavored to seize the proceeds of insurance policies because the deceased, while insolvent, had named his wife as beneficiary in substitution for his estate. In Stutzman v. Fidelity Mutual Ins. Co., 315 Pa. 47 (1934); 172 Atl. 302, this had occurred under the following circumstances: Deceased was heavily involved*92 financially, but was carrying insurance on his life in an amount in excess of $ 100,000. Some of the policies were payable to his estate and some to his wife. A creditor, by threat of criminal proceedings, prevailed upon the insured to assign to him -- the wife of the insured joining -- policies in which his wife was named as beneficiary, having a cash surrender value of $ 700. "To restore to his wife the protection which she lost, the husband immediately * * * changed the beneficiary in the $ 25,000 Fidelity policy from his estate to her." The chancellor found that the purpose of the deceased in changing the beneficiary was not to defraud creditors and the Supreme Court of Pennsylvania affirmed, holding that the circumstances to which we have alluded "distinguish sharply this situation from that presented" in the cases cited, among which were In re McKown's Estate and Fidelity Trust Co. v. Union National Bank of Pittsburgh, supra. In Potter Title & Trust Co. v. Fidelity Trust, 316 Pa. 316">316 Pa. 316 (1934); 175 Atl. 400, the court, in a per curiam opinion, said: The wife and children *93 of every man have an insurable interest in his life, and the law has always looked with favor on life insurance contracts made for their comfort and maintenance. From our earliest cases down to the present day this court has upheld and encouraged such provisions and protected them from claims of creditors. Stutzman, Admr., v. Fidelity Ins. Co., 315 Pa. 47">315 Pa. 47, 49. In addition, the legislature has enacted laws for the protection of the wife and children, as beneficiaries of life insurance policies, from claims of creditors of the insured (Acts of April 15, 1868, P. L. 103 and June 28, 1923 P. L. 884), and this benefit inures to them whether the insured was solvent or insolvent, or had reserved the right to change the beneficiary: Schaeffer's Estate, 194 Pa. 420">194 Pa. 420; Irving Bank v. Alexander, 280 Pa. 466">280 Pa. 466. In that case the insured, while insolvent, had executed an insurance trust for the benefit of his wife, daughter, and sister. Prior to the execution of the trust the wife had been the named beneficiary in most *51 of the insurance policies and the daughter had been the*94 named beneficiary in the remainder. The court pointed out that "no change of beneficiary" had been made, with the exception that the sister had been made a contingent beneficiary at the death of the wife and daughter, and held that the creditors had no right to the fund created by the insured's death. Newman v. Newman, supra, was a controversy between a widow and the executors of her deceased husband's estate. Policy of insurance had been issued July 11, 1925, the wife being the designated beneficiary. On April 9, 1932, the beneficiary was changed to the executors, administrators, or assigns of the insured and on April 11 the policy was assigned to a bank as collateral security for a loan. On January 4, 1937, the loan was paid and the wife was restored as beneficiary. The executors claimed that the insured was insolvent when the wife was restored as a beneficiary and that such change was an effort, in the words of the affidavit of defense, "to cheat and defraud * * * creditors * * * in violation of the provisions of the Uniform Fraudulent Conveyances Act." The Supreme Court of Pennsylvania said: The learned court below held that the affidavit*95 of defense was insufficient. The husband merely restored to the plaintiff the same policy benefit which she had relinquished so long as was necessary to secure the bank's loan to him; when the loan was repaid she was merely put in the position she had occupied before. There is nothing to show bad faith. See Stutzman, Administrator v. Fidelity Insurance Company, 315 Pa. 47">315 Pa. 47, 172 A. 302">172 A. 302. The situation is precisely what it would have been if, instead of formally changing the beneficiary, the wife had originally joined in the assignment as collateral and on payment of the debt the policy had been returned by the bank. Judgment affirmed. In Provident Trust Co. v. Rothman, 321 Pa. 177">321 Pa. 177 (1936); 183 Atl. 793, the court, in an attachment proceeding brought by creditors against a surviving wife, discussed the Pennsylvania legislation, which culminated in the Act of June 28, 1923, of which the statute relied on by petitioner is a part, and distinguished the Fidelity Trust Co. v. Union National Bank case, supra, upon the ground that "there was not a fraudulent transfer," *96 as there had been in the cited case. Landreth v. First National Bank, 346 Pa. 551">346 Pa. 551 (1943); 31 Atl. (2d) 161, also cited by petitioner, although involving the right to proceeds of an insurance policy, turned upon the wife's right to stand upon the precise terms of a note which had been executed by her husband prior to his death. The court refused to construe the language making every "debt" or "obligation" of the pledgor due at his death applicable to corporate notes signed by him as a surety and which were not then due. It accordingly found that the widow was entitled to the insurance proceeds, reduced only by the amount borrowed by the insured and secured by the pledged insurance policy. *52 Each of the parties seems to take an extreme view of the Pennsylvania law. Petitioner argues that the act of 1923 means nothing unless it is construed to mean that it grants an absolute exemption of the insurance proceeds, even though the assignment may have been in fraud of creditors. Respondent appears to believe that the sole test is solvency or insolvency of the insured when the change in beneficiary is made. In our judgment*97 neither view is sound. In the Fidelity Trust Co. v. Union National Bank case, supra, the court, upon another issue, made specific reference to the statute upon which petitioner relies. Contention was made that insurance policies which had been assigned to a bank as collateral were "within the statutory exemption saving family insurance from creditors." The chancellor had awarded to the plaintiff (administrator pendente lite) the difference between the note, with interest, and the stipulated value of the collateral. The court held that the donor had subordinated the contingent beneficial interest theretofore conferred on his family to the extent of the loan and interest; that while the statute exempts insurance payable to the family it does not exempt proceeds payable to a creditor or to creditors and the family; that the creditor's interest is not exempt; and therefore that the asset which the donor "had carved out of what was once an expectancy for his family" "remained where it was, an asset of the donor, which on his death passed to his personal representatives in such amount as the bank might have claimed." The fact that the court considered and discussed the*98 1923 statute in that case is convincing evidence it did not deem it to be an insurmountable obstacle to the application of the Uniform Fraudulent Conveyance Act to policies of insurance assigned in fraud of creditors. The later cases, however, indicate that the court did not intend to lay down a rule making every change of beneficiary by an insolvent insured presumptively fraudulent. As we view the cases, the court has given a reasonable construction to both legislative enactments, holding that, while it is the policy of the state to protect a wife and children of an insured, it will not do so when he has been guilty of conduct interdicted by the Fraudulent Conveyance Act. Was Pearlman guilty of such conduct in naming his wife beneficiary in the five policies under which approximately $ 200,000 is to be paid by the insurance companies? We are of the opinion he was. The courts of Pennsylvania would so hold in an action brought by creditors or by a representative of his estate. Fidelity Trust Co. v. Union Bank of Pittsburgh, supra.We are therefore of the opinion and now hold that petitioner is liable as a transferee for the income taxes of her*99 deceased husband. We have not overlooked the several contentions made by petitioner *53 upon brief; but in our judgment none of them can change the result. Her reliance upon the state statute of limitations is unsound. The transferee provision of the revenue act contains its own limitation. The one applicable here is "one year after the expiration of the period for assessment against the taxpayer." (Sec. 311 (b) (1), I. R. C.) The liability asserted for the 1940 taxes affirmatively appears to be timely. We can not find on the present record that any of the others were barred. Nor is it material in the instant case that the change in beneficiary occurred before the liability for some of the taxes arose. If the transfer was in fraud of creditors, intended to defraud creditors, or devised as a scheme to defeat the collection of future income taxes, it would be within one or more of the sections of the Fraudulent Conveyance Act and void under the law of Pennsylvania. Fidelity Trust Co. v. Union Bank of Pittsburgh, supra.Cf. Harwood v. Eaton, 68 Fed. (2d) 12. Nor need we be concerned with whether the Commissioner, *100 as a result of this proceeding, succeeds in collecting all of his claim while other creditors may not fare so well. Whether he may sequestrate the monthly payments, "compel her to exercise certain options under which she may receive portions of the principal of the insurance fund over a period of years," or distrain upon other property owned by her, is not within our jurisdiction. It may even be (as suggested by the court in John Hancock Mutual Life Insurance Co. v. Helvering, supra) that the insurance companies are not trustees and that the relationship between them and petitioner is that of debtor-creditor. As to that we express no opinion. Our task is complete when the question of liability is determined. Since we have held that petitioner is liable as a transferee, the extent of such liability must be determined. In this connection the real question seems to be (see footnote 1) whether the deduction of $ 8,212.50 each year as accrued interest may be allowed. Petitioner relies upon Berryman D. Fincannon, 2 T. C. 216. In that case the issue was whether commissions earned by an active business conducted by*101 the taxpayer were to be included in his gross income in the year earned by the business, its books being kept on an accrual basis, or in the year when they were paid, the taxpayer being on the cash basis. We recognized that two separate systems of accounting could be maintained by the taxpayer, one for his active business and one reflecting his other transactions, and that under the circumstances before us he should have included in his gross income the commissions accrued on the books of his business. The Fincannon case was a practical solution of the problem there dealt with; but it can have no application under the present facts. Pearlman's business, long prior to the taxable years, had become a mere shell, transacting no business and having no real existence. True, *54 it continued to make postings to accounts which had been set up on its books to show the interest accruing upon the loans from the banks. That, however, in our judgment, was an idle gesture. Clearly, the creditors, at all times, had recognized they were extending the credit to Pearlman, trading as M. M. Pearlman and Co. He was individually liable for the debt. The creditors did not look to the "business" *102 and it would have been futile for them to have done so. Taking the balance sheet of the business at its face, it was insolvent throughout the taxable years. Its principal asset was a "Drawing Account" of Pearlman, ranging from $ 112,681.76 in 1934 to $ 272,714.48 in 1940. If the books had been properly kept the amount owing by Pearlman to his business, during most of the period, would have been in excess of a quarter of a million dollars. The business had no net worth, the other property owned by it being furniture and fixtures carried at $ 2,309.30, a small amount of cash, and a "Loan Receivable" of 1015 Chestnut Corporation, another company of Pearlman, in the amount of $ 9,664.67. The value of the last mentioned is not shown; but the parties have stipulated that an account payable by the same company to Pearlman and his trustee in the amount of $ 24,500 had no value on October 21, 1933. Looking realistically at the situation as it existed throughout the taxable years, the conclusion is inescapable that the interest was Pearlman's. He was on the cash basis and, although he had substantial income, no interest was ever paid. To allow the deduction of $ 8,212.50 during each *103 of the five years merely because entries were made on the books of an inactive non-entity would be to exalt form above substance. Cf. Griffiths v. Helvering, 308 U.S. 355">308 U.S. 355, and Higgins v. Smith, 308 U.S. 473">308 U.S. 473. Whether the "business" could be said to have properly accrued the interest even if it had been active -- the other facts being as shown in our findings -- is at least debatable. With all due deference to the Circuit Court of Appeals for the Eighth Circuit, we adhere to the view expressed in Zimmerman Steel Co., 45 B. T. A. 1041, notwithstanding the reversal in Zimmerman Steel Co. v. Commissioner, 130 Fed. (2d) 1011. But the point need not be labored. We hold merely that petitioner has failed to prove that Pearlman was on other than a cash basis or that any amount in excess of that allowed by the respondent may be deducted from his gross income as "interest paid or accrued within the taxable years on indebtedness" within the purview of section 23 (b) of the applicable revenue acts. Respondent's determination is approved and his request that $ *104 1,755.15 additional tax for 1940 be included in petitioner's liability as a transferee is granted. Decision will be entered under Rule 50. Footnotes

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Appeal of BRYANT & STRATTON COMMERCIAL SCHOOL, INC. Bryant & Stratton Commercial School, Inc. v. Commissioner Docket No. 43. United States Board of Tax Appeals 1 B.T.A. 32; 1924 BTA LEXIS 268; October 29, 1924, decided Submitted September 30, 1924. *268 The taxpayer was a personal service corporation within section 200 of the Revenue Act of 1918. Philip Nichols, Esq., for the taxpayer. Arthur H. Deibert, Esq. (Nelson T. Hartson, Solicitor of Internal Revenue) for the Commissioner. STERNHAGEN *32 Before JAMES, STERNHAGEN, TRAMMELL, and TRUSSELL. This appeal comes to the Board upon a petition and answer raising questions of fact. Oral hearing was had at which witnesses testified in behalf of both parties. Oral argument was made by counsel and briefs have been filed. The deficiency asserted covers the three fiscal years ending June 30, 1919, 1920, and 1921, aggregating $40,537.69, all of which depends upon the single question whether the taxpayer was, during the period in question, a personal service corporation as defined in section 200 of the Revenue Act of 1918, as follows: The term "personal service corporation" means a corporation whose income is to be ascribed primarily to the activities of the principal owners or stockholders who are themselves regularly engaged in the active conduct of the affairs of the corporation and in which capital (whether invested or borrowed) is not a*269 material income-producing factor; * * *. FINDINGS OF FACT. The Bryant & Stratton Commercial School, Inc., is a Massachusetts corporation doing business at 334 Boylston Street, Boston, Mass. It was incorporated in 1917 to succeed the Bryant & Stratton School, well known throughout New England, which had been in existence since 1865 and was since 1868 owned and conducted by Hermon E. Hibbard. From the time of its incorporation and throughout the period here in question, the capital stock of the corporation consisted of 700 shares of common stock, owned as follows: Shares. J. William Blaisdell350 Minerva H. Blaisdell (his wife)50 Llewellyn O. White250 Lilla M. White (his wife)50 *33 Blaisdell was president and White vice president, treasurer, and secretary of the corporation. The capital was $70,000, all of which was originally paid in, of which $30,000 represented the cost of tangible property and $40,000 the cost of good will. This tangible property consisted of furniture and fixtures, such as desks, chairs, and blackboards, and typewriters, stationery, and other miscellaneous supplies. The principal stockholders, Blaisdell and White, *270 had been in the employ of the school since 1887 and 1895, respectively, and had occupied various positions and performed various functions. For a considerable time prior to the organization of the corporation, and especially during Hibbard's frequent absences, they had virtually been in charge of the school and had been responsible for its management and success. The standing and reputation of the school were to a substantial degree attributable to them. During the years in question they were in full and complete control. Blaisdell was principal and White secretary. They laid out all of the courses of instruction, consisting of shorthand, typewriting, bookkeeping, civil service, secretarial service, general business, and teaching in commercial schools. They supervised all of this instruction and to some extent actually gave instruction. They devoted themselves exclusively to the conduct of the school and were in constant attendance at their offices. Blaisdell, who appeared as a witness in the appeal, testified that he was very frequently in personal touch with the students, who came to him for advice as to their particular studies and their courses. Although White devoted*271 himself more largely to the administrative details of the business aspects of the school, such as the keeping and supervision of the accounts, he also was to a substantial degree engaged in educational activities. The taxpayer leased and occupied 4 floors of a building on Boylston Street, with more than 20 classrooms. All of these classrooms were equipped with the usual school equipment. About 200 typewriters were owned, some of which were rented to the pupils for home use. This rental was, however, confined strictly to pupils and to the extent that it was incidentally necessary to their proper instruction. Stationery and supplies were also sold to the pupils, but only to the extent necessary to their convenient instruction. The receipts from such sales were at a slight advance over cost so as to cover maintenance of the department. The school had about 27 to 30 subordinate teachers receiving an aggregate amount of salaries of $60,091.56 in 1919, $54,002.61 in 1920, and $58,302.88 in 1921. None of these participated in the management or was in control or charge of any course or group of subjects. Such courses were directly under the control and supervision of Blaisdell*272 and White. One of the features of the school was its employment department, the function of which was to assure to its graduates satisfactory positions. This received a substantial portion of the personal attention of Blaisdell. There were two sides to this work. Not only did he interview the students for the purpose of securing for them suitable employment, but he also kept in touch with prospective employers so as to assure such positions. *34 The following are the gross receipts: 191919201921 Tuition$140,147.12$160,112.67$180,668.74 Sale of stationery and supplies3,846.455,715.755,223.17 Rent of typewriters5,117.613,083.062,779.59 Profit on machines sold2,317.50 Miscellaneous2,978.684,271.20908.55 Total152,089.8673,182.68191,897.55 The accounts receivable appearing on the balance sheet were made up as follows: 191919201921 L. O. White overdraft$3,321.89 Typewriter rentals2,206.34$1,415.34$2,316.01 Typewriter exchange6,634.856,224.415,846.69 Total12,163.087,639.758,162.70 The item of typewriter rentals represents the amounts due from students*273 for rental of typewriters in their possession at the end of the fiscal year. The item of typewriter exchange represents the value of typewriters and is in reality an item of tangible assets and not an account receivable. As a general rule payments for tuition were cash transactions and not on credit. Diplomas were withheld until payment was made. Although in some instances students were behind in payment, this was for not more than a few weeks. Promissory notes were never taken. The capital of the corporation was found by the Commissioner to be, 1919, $77,608.16; 1920, $74,112.50; 1921, $60,893.10, and the so-called taxable income, 1919, $30,267.51; 1920, $33,140.49; 1921, $48,916.66. The corporation spent for advertising, 1919, $12,448.92; 1920, $16,497.86; 1921, $16,798.50. In its original return for the fiscal period ended June 30, 1918, the taxpayer made no claim for recognition as a personal service corporation but paid income and profits taxes of $4,081.64. At the time of filing this return the Revenue Act of 1918 had not been passed, and the definition of personal service corporation contained in that Act was unknown. On May 12, 1919, the taxpayer filed a claim*274 for refund of the total tax paid, on the ground that it was a personal service corporation within the meaning of the Act. While this claim was pending, the returns for the years in question were filed, in which the taxpayer claimed to be a personal service corporation and paid no tax. On June 27, 1922, by letter from the Commissioner to the taxpayer, the claim for classification as a personal service corporation was allowed in the following language, and the 1918 tax refunded: After careful consideration of the facts submitted, your claim for classification as a personal service corporation, under the provisions of section 200 of the Revenue Act of 1918, and exemption from taxation as such under the provisions of section 218(e) has been allowed. *35 During the years in question Blaisdell and White in their individual returns included their respective shares of the corporate income in the belief that the corporation was properly a personal service corporation. No examination of the corporation's books or business was made at the school and no representative of the Bureau of Internal Revenue visited the school for any purpose until February, 1924, when a field investigation*275 and examination of the books and records was made by William J. McCarthy, a revenue agent. McCarthy was given free access to all of the books and papers and the entire premises were available for his inspection and investigation. He worked for about a week in a room adjoining that of Blaisdell and observed the conduct of the school generally. He heard much of the conversation which took place in Blaisdell's office, and under date of March 1, 1924, he made the following report to the internal revenue agent in charge: In re: Bryant & Stratton School, Inc., 334 Boylston Street, Boston, Mass. BOSTON, MASS., March 1, 1924. Examining officer, Wm. J. McCarthy. Examination commenced, February 25, 1924. Examination completed, March 1, 1924. Days spent on examination, 4. INTERNAL REVENUE AGENT IN CHARGE, Boston, Mass. An examination of the books and records of the above-named personal service corporation for the fiscal years ended June 30, 1919, June 30, 1920, and June 30, 1921, disclosed the information which is made a part of this report. Kind of businessCommercial school. Authority for examination: In connection with the examination of*276 the individual returns of J. Wm. Blaisdell, 129 Arlington Street, Newton, Mass., who is a shareholder of this corporation. Examination disclosed no basis for consolidation. HISTORY OF ORGANIZATION. The Bryant & Stratton Commercial School, Inc., was organized under date of July 10, 1917, under the laws of the State of Massachusetts, with an authorized capital stock of $75,000, comprising 750 shares of common stock, par value $100 per share, and no preferred stock. There was issued $70,000 of common stock for cash. IMPORTANT FEATURES. The Bryant & Stratton Commercial School has been established for several years, and up to the time of the incorporation in 1917 it was owned by a single individual, who conducted the school as an individual business. Soon after this individual's death, in 1917, the furniture and fixtures, merchandise, and good will of the Bryant & Stratton Commercial School was sold to the Bryant & Stratton Commercial School, Inc., for cash. The shareholders of the Bryant & Stratton Commercial School, Inc., are as follows: J. Wm. Blaisdell350 Minerva H. Blaisdell50 Llewellyn O. White250 Lilla M. White50 Total700 J. Wm. *277 Blaisdell, owning 350 shares, or one-half interest, is the principal of the school. He has been connected with the school for about a period of 30 years and for a number of years has acted in the same capacity. *36 Llewellyn O. White, owning 250 shares, or 5/14 interest, is the vice president, treasurer, and secretary and assistant to Mr. Blaisdell. He has been connected with the school for a period of about 25 years. The corporation has both home study and resident instruction departments but does not lodge or board its students. The corporation does not take any notes from the students or is any business solicited. It will be noted that the corporation paid $40,000 in cash for the "good will" of the Bryant & Stratton Commercial School. It was stated by Mr. L. O. White that at the time the school was up for sale an offer was made by another party, who agreed to pay $40,000 for the "good will" providing that Mr. Blaisdell and Mr. White agreed to sign contracts to give their services to the school in the same manner as they had always done. Upon their refusal to make such contracts, no offer was made, because it was seen that without the services of these two*278 men the "good will" would have no value in two years' time after it became known that they had left the school. The principal owners, Mr. Blaisdell and Mr. White, give all their time and attention to the preparation of courses, syllabus of work, inspection of higher lessons, and settlement of points in dispute. They also spend considerable time in giving individual instruction to the students by having them come to their office and take up with them any studies which the students do not clearly understand. The school is conducted wholly on a personal service basis, as the principal part of its net income is due to the services, ability, reputation, and standing of the principals. The income from the sale of school books and supplies and rent of typewriters is incidental to the income received from tuitions. School books and supplies are sold only to students attending the school and the profit received is very small, as it is not the intention that a profit should be made, the books being sold for an amount sufficient enough to cover expenses of handling same. Stationery and supplies are kept only for the convenience of the students so that if such is needed by them it*279 can be purchased at the school, without having the students going out to an outside store to purchase stationery during school hours. In considering the basis of a personal service corporation the examining officer has referred to Cumulative Bulletin 2, page 16 (Com. Rec. 24) and Cumulative Bulletin 5, page 20 (Com. Rec. 683). The various items were discussed with Mr. Blaisdell and Mr. White, the principals of the school, and they were advised of the findings. The Board finds that the income of the taxpayer during the period in question was attributable primarily to the activities of Blaisdell and White, who were the principal stockholders; that Blaisdell and White were regularly engaged in the active conduct of the affairs of the corporation; and that capital was not a material income-producing factor. DECISION. The taxpayer was during the fiscal years ending June 30, 1919, 1920, and 1921, a personal service corporation, and the deficiency determined by the Commissioner in the sum of $40,537.69 for the said years is disallowed. OPINION. STERNHAGEN: The statutory definition of a personal service corporation contains three elements, all of which must be present. *280 First, the income must be ascribed primarily to the activities of the principal stockholder; second, such principal owners or stockholders must be regularly engaged in the active conduct of the corporation's affairs; and, third, the income of the corporation may not be materially produced by capital. It will be noted that each of these three *37 elements is so qualified as to require careful individual judgment in every case. The first element requires not that the income must be ascribable entirely to the activities of the stockholders, but only that it shall be primarily so. In the second element the stockholders are not merely to be somewhat engaged in the corporation's affairs, but they must be regularly and actively engaged in such affairs. And in the third element, if any capital is employed in the business, it may not be a material income-producing factor. These qualifying words, primarily, regularly and actively, and material, preclude any definitive classification. They make necessary the application of a flexible judgment, and since we are required by the statute to decide the question, it is our judgment which must be applied to*281 the facts of each case which comes before us. No intensive rule can be laid down, and it is not surprising that the Commissioner's administration of this section of the statute has been an extremely difficult task. The very statement of a rule, if rigidly adhered to, would defeat the letter and intendment of the Act. Here we have an incorporated commercial school to consider. We are not called upon to decide whether all schools are within the definition, or even whether all commercial schools are so. The Commissioner has well said in A.R.R. 24 (C.B. 2, 16) that "education and instruction are primarily and before all personal service and should be so classified unless there are cogent reasons for a different classification." But, however true this general statement may be, it does not follow that all corporations having to do with education and instruction are within the statutory classification. And this is a corporation which the Commissioner has said is on the other side of the line. We do not think so. We are of the opinion that all of the facts before us taken together constitute a personal service corporation. Blaisdell and White are the guiding spirits in the school. *282 Nothing takes place without their personal knowledge and supervision. For years before Hibbard's death, Blaisdell had often and for long periods been in charge. So important is their function that when upon the death of Hibbard in 1917 the school was for sale the only offer which was received was expressly based upon the condition that Blaisdell and White should remain to conduct its affairs. When they refused the offer was withdrawn. That they are regularly engaged in the active conduct of the school is beyond question, and we think this is the primary factor in the success of the enterprise. Blaisdell, who although an interested witness was nevertheless a man whose statements are entitled to respect, stated that he felt sure that had they organized another school, the taxpayer corporation would have lasted only two years. We may perhaps take this statement with some reservation, but we nevertheless think from the evidence that the taxpayer would have been in a very serious situation if Blaisdell and White had quit. The fact that many teachers are employed to give instruction, while it shows that the income is not attributable solely to the activities of stockholders, does*283 not prove that the stockholders are not the primary source of income. We come then to the third necessary element - that capital is not a material income-producing factor. It is urged that since $70,000 *38 was originally invested in the corporation at the time of the purchase of the school in 1917, $40,000 of which was invested in good will, this makes the definition inapplicable. Furthermore, it is said that substantial amounts spent annually for advertising and salaries show that capital was a material income-producing factor. But it is not the existence of capital which is determinative. If it were so, the statute would be fruitless. For all business corporations have capital. It is only when capital is important in the production of income that the definition does not apply. The common case of the manufacturing corporation receiving its income from the sale of goods produced by its plant is clearly outside the classification. But school desks and blackboards do not produce income except remotely. Nor did the so-called good will of the school. Apparently here the good will was a composite of the school's established name, its well-known location, and the reputation*284 of Blaisdell and White. Of these, the last was clearly the most important; and thus we are brought again to the very personal aspect of the business. It is apparent that these men were absolutely essential to the success of the enterprise - so much so that their refusal to agree to continue to manage the school on salaries killed an offer for its purchase. The amounts expended annually for salaries and advertising are not capital. They are current expenses, and it is not to be assumed that in an income tax law Congress so loosely used the word capital as to confuse it in this definition with expense. This is especially clear in view of the parenthetical expression "whether invested or borrowed," which can hardly be assumed to refer to amounts paid for current salaries and advertising. We conclude that the taxpayer was a personal service corporation during the period in question and was therefore not liable for the tax now asserted. The deficiency is disallowed.

2020-12-01 12:13:33.956719+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=19317&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa04%5cOpinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-20-00517-CV IN RE COOK COMPRESSION LLC Original Mandamus Proceeding 1 Proceeding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Beth Watkins, Justice Delivered and Filed: November 25, 2020 PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED In the underlying personal injury lawsuit, the trial court granted the plaintiffs/real parties in interest’s motion to compel the apex deposition of Marcell Ulrichs, who is the President of Dover Precision Components, one of the related/parent entities of relator/defendant, Cook Compression, LLC. The trial court also denied relator’s motion for protective order and sustained plaintiffs’ objection to Ulrichs’ declaration filed in support of relator’s motion. Relator filed its petition on October 22, 2020 and a motion for temporary relief. Although we did not request a response, plaintiffs filed a response on October 27, 2020, to which relator later replied. We conditionally grant the petition for writ of mandamus. 1 This proceeding arises out of Cause No. 2019CI02008, styled Luis Bazaldua, et al. v. Dover Energy, Inc. d/b/a Cook Compression, et al., pending in the 150th Judicial District Court, Bexar County, Texas. The Honorable Monique Diaz signed the order at issue in this original proceeding.  04-20-00517-CV STANDARD OF REVIEW Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion when there is no other adequate remedy at law. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619 , 623 (Tex. 2007) (orig. proceeding). To satisfy the clear abuse of discretion standard, the relator must show “that the trial court could reasonably have reached only one decision.” Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627 , 630 (Tex. 1996) (orig. proceeding) (quoting Walker v. Packer, 827 S.W.2d 833 , 840 (Tex. 1992) (orig. proceeding)). “A trial court has no ‘discretion’ in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ.” Walker, 827 S.W.2d at 840. “[A] party will not have an adequate remedy by appeal when the appellate court would not be able to cure the trial court’s discovery error.” Id. at 843. With regard to apex depositions, a party may seek mandamus relief to determine whether the trial court correctly ordered an apex deposition. See In re Alcatel USA, Inc., 11 S.W.3d 173 , 175 (Tex. 2000) (orig. proceeding) (mandamus relief appropriate when trial court abused its discretion by denying motion to quash apex depositions); see also In re Semgroup Corp., No. 04- 16-00230-CV, 2016 WL 3085875 , at *1 (Tex. App.—San Antonio June 1, 2016, orig. proceeding) (mem. op.) (granting mandamus relief because real parties in interest did not meet requirements necessary to justify apex depositions). Thus, mandamus is the appropriate vehicle to challenge the trial court’s order mandating that Ulrichs submit to plaintiffs’ deposition notice. See id. DISCUSSION In its petition for writ of mandamus, realtor raises two challenges to the trial court’s rulings. First, relator asserts the trial court abused its discretion by sustaining plaintiffs’ objection to -2-  04-20-00517-CV Ulrichs’ declaration and denying its motion for a protective order. Second, relator asserts the trial court abused its discretion by granting plaintiffs’ motion to compel the apex deposition. A. Governing Law When a party seeks an apex deposition and the corporate official or corporation files a motion for protective order accompanied by the official’s affidavit denying any knowledge of relevant facts, the party seeking the deposition bears the burden of satisfying a two-step test. Alcatel, 11 S.W.3d at 175-76. First, the trial court should determine whether the party seeking the deposition has arguably shown the official has any unique or superior personal knowledge of discoverable information. Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d 125 , 128 (Tex. 1995) (orig. proceeding). If the party seeking the deposition fails to establish the first prong of the test, the trial court should grant the motion for protection and “first require the party seeking the deposition to attempt to obtain the discovery through less intrusive methods.” Id. at 128. The second prong of the Crown Central test involves less intrusive methods of discovery, which “could include the depositions of lower level employees, the deposition of the corporation itself, and interrogatories and requests for production of documents directed to the corporation.” Id. The party seeking the apex deposition must show the information it seeks cannot “be obtained by less-intrusive methods.” In re Daisy Mfg. Co., 17 S.W.3d 654 , 658 (Tex. 2000) (orig. proceeding) (per curiam). “Merely completing some less-intrusive discovery does not trigger an automatic right to depose the apex official.” Id. at 658 . “After making a good faith effort to obtain the discovery through less intrusive methods, the party seeking the deposition may attempt to show (1) that there is a reasonable indication that the official’s deposition is calculated to lead to the discovery of admissible evidence, and (2) that the less intrusive methods of discovery are unsatisfactory, insufficient or inadequate.” Crown Cent., 904 S.W.2d at 128. “If the party seeking the deposition makes this showing, the trial court should modify or vacate the protective order as -3-  04-20-00517-CV appropriate.” Id. “If the party seeking the deposition fails to make this showing, the trial court should leave the protective order in place.” Id. B. Ulrichs’ Declaration Relator filed a motion for protective order to prohibit the deposition accompanied by Ulrichs’ “declaration” in which he stated: I have no personal knowledge of facts relevant to this case, including the nature of the hiring, retention, training, entrustment, etc. of the Cook Compression driver involved, or of the accident itself (other than the fact that the accident occurred) or of its aftermath. Any and all information I have related to this case has been relayed to me by subordinates or by internal and outside counsel. Plaintiffs objected to the declaration relying on Texas Civil Practice and Remedies Code section 132.001, which provides, in relevant part, as follows: (a) Except as provided by Subsection (b), an unsworn declaration may be used in lieu of a written sworn declaration, verification, certification, oath, or affidavit required by statute or required by a rule, order, or requirement adopted as provided by law. ... (c) An unsworn declaration made under this section must be: (1) in writing; and (2) subscribed by the person making the declaration as true under penalty of perjury. TEX. CIV. PRAC. & REM. CODE § 132.001(a, c). A template jurat containing the declarant’s name, address, date of birth, and perjury attestation appears at subsection (d). An unsworn declaration “must include a jurat in substantially the following form”: -4-  04-20-00517-CV “My name is (First) (Middle) (Last), my date of birth is _______________________, and my address is (Street) (City) (State) (Zip Code) and I declare under penalty of (Country) perjury that the foregoing is true and correct. Executed in __________ County, State of ____, on the ______ day of (Month) (Year) ____________________ Declarant” Id. § 132.001(d) (emphasis added). Plaintiffs argued Ulrichs’ declaration was not verified and, although made under penalty of perjury, lacked the statutorily-required jurat for a declaration in lieu of an affidavit because it lacked his date of birth, address, and the county and state in which the document was executed. In support of their argument, plaintiffs cite to Hays St. Bridge Restoration Group v. City of San Antonio, 570 S.W.3d 697 , 702 (Tex. 2019). In Hays, before reaching the merits of the case, the Supreme Court addressed the City’s motion to dismiss in which the City argued the case had been moot the entire four years it was on appeal because the City complied with the trial court’s judgment a few weeks after it was rendered. 2 The Court concluded the “motion offered no support for its assertions other than a half-page declaration by” the City’s Assistant City Manager because “the declaration was unverified, and while it state[d] that it is made under penalty of perjury, it lack[ed] the statutorily required jurat for a declaration in lieu of an affidavit.” Id. In a footnote, the Court cited to section 132.001(d), noting the declaration did not include the Assistant City Manager’s date of birth. Id. at 702 n.15. 2 “The primary issue [in Hays was] whether the waiver of governmental immunity for certain claims provided by the Local Government Contract Claims Act . . . at the time this case arose applies when the remedy sought is specific performance rather than money damages.” Hays, 570 S.W.3d at 699. The case did not involve an apex deposition and the Court was not presented with the same issue as in this original proceeding. -5-  04-20-00517-CV Therefore, plaintiffs conclude that, under Hays, Ulrichs’ declaration was inadmissible hearsay and provided no support for relator’s motion for protective order. Plaintiffs argue that, on this ground alone, the motion for protective order should be denied. Relator counters that the declaration was in “substantially” the same form as the template jurat because the declaration states: My name is Marcell Ulrichs. I am over 21 years of age, of sound mind and otherwise competent to make this declaration. I have never been convicted of a felony, and, if called upon, I could and would testify competently to the facts contained herein, which are within my personal knowledge and are true and correct. I make this declaration under penalty of perjury and state as follows. . . . .. [Emphasis added.] Relator contends plaintiffs’ objections are merely to the form of the declaration and should be rejected because the defects are not fatal and the declaration contains the operative part of the jurat, which is the portion subjecting the declarant to the penalty of perjury. We agree. “Under section 132.001, the main requirements are that the declaration be in writing and ‘subscribed by the person making the declaration as true under penalty of perjury.’” Bonney v. U.S. Bank Nat’l Ass’n, 05-15-01057-CV, 2016 WL 3902607 , at *3 (Tex. App.—Dallas July 14, 2016, no pet.) (mem. op.) (concluding declaration substantially complied with section 132.001 even though declarant omitted her middle name, address, and date of birth). “If those requirements are met, courts have found the jurat substantially complies with the statute.” Id.; see also United Rentals, Inc. v. Smith, 445 S.W.3d 808 , 813 (Tex. App.—El Paso 2014, no pet.) (holding, the “[f]ailure to include the declarant’s birthdate or address is a formal defect having no effect on whether a false statement would render the declarant liable for perjury” and did not render declaration inoperative or convert it to unsworn hearsay). We conclude the declaration substantially complies with the jurat, and the trial court erred by sustaining plaintiffs’ objections to the declaration because the objections go to the form of the -6-  04-20-00517-CV declaration and the declaration contains the operative part of the jurat, which is the portion subjecting Ulrich to the penalty of perjury. In re BP Prods. N. Am. Inc., 01-06-00613-CV, 2006 WL 2192546 , at *5 (Tex. App.—Houston [1st Dist.] Aug. 4, 2006, orig. proceeding) (mem. op.) (“We think that the better rule is that a mechanical application of Crown Central in determining the sufficiency of an affidavit to invoke the apex doctrine is to be rejected.”). Also, although Ulrich did not file an affidavit, we believe his declaration satisfied the Crown Central requirements because he denied having any personal knowledge of facts relevant to the case, “including the nature of the hiring, retention, training, entrustment, etc. of the Cook Compression driver involved, or of the accident itself.” See In re Tex. Genco, LP, 169 S.W.3d 764 , 768 (Tex. App.—Waco 2005, orig. proceeding) (in determining sufficiency of corporate official’s affidavit, the question is whether the official “sufficiently denied knowledge of any relevant facts regarding” the subject matter of the litigation”); In re Burlington N. & Santa Fe Ry. Co., 99 S.W.3d 323 , 326 (Tex. App.—Fort Worth 2003, orig. proceeding) (“BNSF properly initiated the apex guideline proceedings set forth in Crown Central by moving for protection and filing Rose’s affidavit denying any knowledge of relevant facts.”). Because we conclude the declaration satisfies Crown Central, the burden shifted to plaintiffs to satisfy their burden under Crown Central. See Burlington, 99 S.W.3d at 326 . C. Apex Deposition Under Crown Central, the trial court first had to determine whether plaintiffs had arguably shown Ulrichs had any unique or superior personal knowledge of discoverable information. Crown Cent., 904 S.W.2d at 128. A showing of “unique or superior knowledge” requires “some showing beyond mere relevance, such as evidence that a high-level executive is the only person with personal knowledge of the information sought or that the executive arguably possesses relevant knowledge greater in quality or quantity than other available sources.” Alcatel, 11 S.W.3d -7-  04-20-00517-CV at 179. “[E]vidence that an apex official received information requires something more to establish that the apex [official] has unique or superior knowledge of discoverable information.” Id. Under the second prong of the Crown Central test, the trial court had to determine whether plaintiffs made a good faith effort to obtain the discovery through less intrusive methods. Id. A “discovering party’s burden is not perfunctorily met by any showing that the party employed less- intrusive discovery methods.” Daisy Mfg., 17 S.W.3d at 658. “Crown Central states only that ‘[d]epending upon the circumstances of the particular case, [less intrusive] methods could include the depositions of lower level employees, the deposition of the corporation itself, and interrogatories and requests for production of documents directed to the corporation.” Id. (emphasis in original) (quoting Crown Cent., 904 S.W.2d at 208). “Crown Central rather, instructs courts to measure whether the discovering party made a reasonable effort to obtain discovery through less-intrusive methods. Merely completing some less-intrusive discovery does not trigger an automatic right to depose the apex official.” Id. The hearing on the motion for protective order and motion to compel was held on September 24, 2020. At 8:01 p.m. on September 23, plaintiffs filed their response and objections to relator’s motion for protective order. Attached to plaintiffs’ pleading were almost 500 pages of various documents. However, the hearing consisted entirely of arguments by counsel and none of the documents attached to plaintiffs’ response were admitted into evidence. It is also clear from the record of the hearing that the trial court did not consider any of these documents because the judge ruled at the end of the hearing. Because the trial court did not require plaintiffs to satisfy their burden with evidence, as opposed to arguments of counsel, we conclude the trial court abused its discretion by denying relator’s motion for protective order and granting plaintiffs’ motion to compel. Under these circumstances, an appellate court would not be able to cure the trial court’s error; thus, relator lacks an adequate remedy by appeal. Walker, 827 S.W.2d at 843; AMR Corp. -8-  04-20-00517-CV v. Enlow, 926 S.W.2d 640 , 644 (Tex. App.—Fort Worth 1996, orig. proceeding) (holding, “no adequate remedy by appeal exists on this ruling because an appellate court could not cure the trial court’s error in ordering the apex deposition”); see also Alcatel, 11 S.W.3d at 181 (granting mandamus relief because trial court abused its discretion by failing to properly apply guidelines set forth in Crown Central); Semgroup Corp., 2016 WL 3085875 , at *3 (granting mandamus relief because plaintiffs did not satisfy requirements necessary to justify taking apex depositions). CONCLUSION For the reasons stated above, we conclude the trial court abused its discretion by sustaining plaintiffs’ objections to the Declaration of Marcell Ulrichs and by granting plaintiffs’ motion to compel the deposition without requiring plaintiffs to satisfy their burden. 3 Therefore, we conditionally grant the petition for writ of mandamus and direct the trial court to vacate its September 29, 2020, Order (1) granting Plaintiffs’ Motion to Compel the deposition of Marcell Ulrichs, (2) sustaining the objections to the Declaration of Marcell Ulrichs, and (3) denying relator’s Motion for Protective Order, no later than fifteen days from the date of this opinion. Relator’s motion for temporary relief is denied as moot. Sandee Bryan Marion, Chief Justice 3 We express no opinion on the merits of plaintiffs’ motion to compel the deposition of Marcell Ulrichs. -9-

2016-07-05 20:33:47.486366+00

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 207 Alleging that his wife, Mrs. Nona Parkman Willis, abandoned him during the month of September, 1944, John T. Willis instituted this action against her on October 14, 1944. In it he prayed for a judgment of separation "a mensa et thoro" and, further, that he be awarded the permanent care, custody and control of their minor child, Mary Emma Willis, then ten years of age. Answering, defendant admitted the abandonment, declaring that "she left her said husband because living with him as his wife, due to his conduct to her, had made life unbearable"; and she asked that the demands of plaintiff be allowed only insofar as he sought the decree of separation. In reconvention, she prayed that she be granted the permanent care, custody and control of the minor child; that she have judgment against plaintiff for alimony of $35 per month for the support of the child; and that she recover further judgment against him in the amount of $200.45, representing attorney's fees and court costs incurred in this suit and also in a previous separation action, dismissed as of nonsuit, which she had brought against her husband (apparently after the abandonment) charging him with cruel treatment. After trial, the court rendered a judgment of separation in favor of plaintiff, and it awarded to him the permanent custody of the child, "subject to the right of the defendant, Nona Parkman Willis, to visit said minor at reasonable times and places and to have said minor visit her at reasonable times and places." Also, there *Page 209 was judgment in reconvention in defendant's favor for $100, being for attorney's fees and court costs expended in the previous separation action instituted by her. Defendant appealed, complaining only of that part of the judgment which rejected her demands for the custody of the minor and for alimony for the child's support. At the commencement of the trial, counsel for the litigants placed in the record a stipulation that the granting of a decree of separation to the plaintiff would provide him no advantage respecting the issue of the awarding of the child's custody, as to which both parties entered the case on an equal basis. Thus, by that agreement, plaintiff sought to waive any superior right that he might have had under Revised Civil Code Article 157, as amended by Acts No. 38 of 1921 and No. 74 of 1924, which recites in part: "In all cases of separation and divorce the children shall be placed under the care of the party who shall have obtained the separation or divorce unless the judge shall, for the greater advantage of the children, order that some or all of them shall be entrusted to the care of the other party. * * *" Irrespective of a stipulation of that kind, in granting custody in separation or divorce proceedings consideration is always given to the welfare and best interest of the child involved. On this point this court in Black v. Black, 205 La. 861,18 So.2d 321, 322, in explaining our award of the custody of two girl children (ages seven and eleven respectively) to their mother *Page 210 and our annullment of the district court's decree favoring their father, offered the following comment: "Under the provisions of the code article (157), as amended, the custody of children whose parents have been legally separated or divorced is left largely to the discretion of the trial judge under the circumstances shown to exist when he is called upon to act. This discretion, however, is not unlimited, but is subject to review and control by this Court. "Where this Court is unable to concur in the conclusion reached by the trial judge that it is for the greater advantage of the children they should be entrusted to the care of the father rather than the care of the mother, the mother is entitled to have the decree annulled and the custody of the children awarded to her. Brewton v. Brewton, 159 La. 251, 105 So. 307; Higginbotham v. Lofton, 183 La. 489, 164 So. 255. "We have great respect for the opinion of the trial judge, but we think that he erred in awarding the custody of the children to Mr. Black under the facts of this case. * * * * * * "The paramount consideration in determining to whom the custody of a child should be granted after a divorce is the welfare and best interest of the child. This is the rule laid down by Article 157 of the Civil Code, as amended, which has been followed consistently by this Court, in its decisions. *Page 211 "The age and sex of the child are important considerations, and the preference is always given to the mother who is not shown to be unsuitable therefor in awarding custody of children, especially girls. Brewton v. Brewton, 159 La. 251, 105 So. 307; Newson v. Newson, 176 La. 694, 146 So. 472; Kammer v. Reed,176 La. 1091, 147 So. 357; Higginbotham v. Lofton, 183 La. 489,164 So. 255; Brupbacher v. Brupbacher, 192 La. 219, 187 So. 555; Hattier v. Martinez, 195 La. 473, 197 So. 146." In the more recent case of White v. Broussard, 206 La. 25,18 So.2d 641, 642, we observed that through the amending of Civil Code Article 157 by the adoption of Act No. 38 of 1921, our "lawmakers long ago very sagaciously turned from the antiquated theory of punishing the party cast in a divorce proceeding to the far more important consideration of the welfare of those children that are unfortunately and unhappily swept along in the turbulent wake of dissolved marriages * * *." Further, in the opinion of that case, we cited approvingly numerous decisions of this court, including Black v. Black, and said: "In applying this provision, the courts have consistently held that the right of the mother to the custody of the minor child is paramount to that of the father, unless, in his discretion, the trial judge concludes it is for the greater advantage of the child that it be entrusted to the care of the father, which conclusion is, of course, subject to review by us. * * * "We do not know what prompted the trial judge to award the custody of this *Page 212 child to the plaintiff, for we do not have his appreciation of the evidence in written reasons for judgment. A careful study and analysis of all of the cases on this subject, however, reveals that this court has consistently awarded the custody of a minor child to the mother unless she is found to be morally unfit or unless, as has been the occasion in very exceptional cases, the mother is incapable of taking care of the child." The effect of our present jurisprudence with respect to the custody of children of tender age in a dispute between the mother and father, as is disclosed by the quoted extracts, is that the mother is preferred where she is a person of good moral character and can suitably and properly care for them. Accordingly, under that doctrine, the defendant herein is entitled to the custody of her eleven year old daughter, unless it appears from the evidence that she is morally unfit or that she is incapable of taking care of the child. For a number of years prior to defendant's abandonment of plaintiff on September 6, 1944, the litigants lived together as husband and wife on a 40-acre tract owned by them and located several miles from the City of Ruston. There they engaged in farming on a small scale, raising principally cotton and corn. Also produced were some milk, butter, eggs, and vegetables, most of which they exchanged for needed groceries. In the production of these various commodities the labor of each was required and furnished. Besides working with his wife on the farm, plaintiff occasionally obtained employment elsewhere *Page 213 as a carpenter, in the interest of which he departed from his home at five o'clock in the morning and returned about seven in the evening. The average yearly income from the joint efforts of both the husband and wife was between $600 and $800. Immediately after defendant abandoned plaintiff, the latter sold the farm (the matrimonial domicile) and established his residence at the home of his brother, A. M. Willis, about three miles distant, taking with him the minor child, Mary Emma Willis. The brother's family consists of a wife and two daughters, ages seven and thirteen respectively. In the house that they occupy, which has a sleeping porch and four rooms, the brother and his wife use the sleeping porch, the three children sleep in the front room in the same bed, and plaintiff has a room to himself. Defendant, since the abandonment, has been living with her mother and father, Mr. and Mrs. J. S. Parkman. In their home, which is located a few miles away and is a six room house, she proposes to keep her child if custody is awarded to her. With reference to the question of the moral fitness of the defendant, the witnesses for both sides testified unequivocally that she is a person of good character. Among those so testifying was the pastor of the church, in which the husband and wife held membership and each taught a Sunday School class, he stating when asked if he ever heard anything derogatory to her character, that "* * * all been good on both sides and they both had been *Page 214 working there and I thought of them as my good church members." The district judge, in refusing to hear some of the witnesses offered to prove defendant's moral fitness, commented that "this woman's character hasn't ever been questioned and besides the evidence we have has certainly established her good character." But certainly conclusive on this point is the following testimony of plaintiff himself: "Q. All right you married a good woman didn't you? A. Yes. "Q. She is still a good woman isn't she? A. She is. "Q. She never committed adultery that you know of has she? A. No. "Q. She doesn't drink? A. No sir. "Q. She doesn't smoke cigarettes? A. No sir. "Q. She is a good woman? A. So far as I know." Since the good moral character of the defendant has been conclusively established there remains to be determined only the question of whether she is capable of properly caring for the minor. Plaintiff maintains that she is not capable, suggesting first that she has lost interest in the welfare of the child. This suggestion is not substantiated by the record. True, she instructed the child to go with the father when the abandonment occurred. But that, it appears, was only a temporary arrangement, for, as explained by the minister of the church of which both were members, "she stated that it was agreeable with her that the child go with its father until he *Page 215 was settled at least, until he had time to more or less get over the excitement and shock and upset of this." On several occasions, following the separation, she sought to enjoy the company of the child, at one time carrying it from school to her home, and at another, while this suit was pending, obtaining an order of court to permit her taking it to the State Fair in Shreveport. Next, plaintiff contends that the home of the minor's maternal grandparents (Mr. and Mrs. J. S. Parkman), in which defendant proposes to keep the child, is an improper place. In support of this contention there was suffered in evidence a certificate of the Clerk of the Ruston City Court showing that Mr. Parkman was convicted of being drunk on two occasions — March 15, 1943, and October 2, 1944 (more than one and one-half years apart) — and for each offense he was sentenced to pay a fine of $7.50 or serve fifteen days in jail. It is not shown, however, that such person is an habitual drunkard or that he was ever intoxicated at home. In fact the record is barren of evidence going to show that intemperance in the Parkman home was indulged in by any one at any time. Also relied on by plaintiff is a certificate reciting that Tommy Parkman, brother of defendant, was charged in the Ruston City Court on June 23, 1944, with the offense of malicious mischief and that he was turned over to the Federal Parole Board of Texas. But it does not appear that the brother was living at the Parkman home at the time or that he was ever convicted of the named offense. Nor is there anything *Page 216 in the record indicating the nature of his difficulty in Texas. On the other hand, in substantiation of defendant's assertion that the Parkman home is a fit place in which to keep the child, the evidence discloses that Mr. and Mrs. Parkman successfully reared to maturity in their home nine children born of their marriage and several who were orphans. With the possible exception of Tommy Parkman, not one of these has ever been involved in any criminal difficulty and all are recognized as good citizens. Defendant, so she testified, does not intend to seek employment if awarded custody of the child; her father "owns his home and has a farm and he buys and sells cattle * * * he is well able to provide for us." If necessary for her to work out, however, she is an experienced practical nurse and obtains $6 a day for her services. It is said in the brief of plaintiff's counsel that: "The record does not indicate the strong desire manifested by the minor to be with her father in preference to her mother. The court and counsel hesitated to pursue that field. The testimony of the minor indicates the strong preference as to the home in which the minor wanted to live." The question here is not whether the child will be as happy with her mother as she may now be with her father; it concerns solely the welfare of the minor. Moreover, as was observed in State ex rel. Sevier v. Sevier et al, 141 La. 60, 74 So. 630, 632, "the minds of children — their likes and dislikes — respond *Page 217 readily to the influence of associations and environment." In awarding the custody of this child to the father, the trial judge, for whose opinion we have a high regard, assigned no written reasons; hence, the basis for his decision is unknown to us. We dislike exceedingly to disturb his decision; but our duty is to review the proceedings and to correct an error if we feel that one has been committed. According to our appreciation of the evidence in the record which we have carefully and thoroughly studied, and considering the present jurisprudence that in cases of this kind the mother is preferred over the father if she is morally fit and otherwise suitable, there is no good reason for depriving this mother of the custody of her daughter of tender age and for denying to the daughter a mother's love and attention that is indisputably beneficial and unquestionably needed. We are unable to conclude that it would be to the greater advantage of the child to place her in the home of the father's brother where during the day while the father is at work, she would be under the supervision of an aunt by marriage (who has two children of her own to care for) and during the night she would sleep with two other children in one bed. To us it seems that the child's interest and welfare would be better served by affording her the loving care, attention and protection of her own mother. Of course, a decree awarding custody of a child is not conclusive in the sense that it can never be changed. Thus, in the future, in a proper proceeding, the mother can be denied the enjoyment and *Page 218 pleasure of her child if she proves unworthy of it. For the reasons assigned the judgment appealed from is annulled and set aside insofar as it awards the custody of the minor child, Mary Emma Willis, to the plaintiff father, John T. Willis, and it is now ordered that the permanent care, custody and control of said child be granted to the defendant mother, Mrs. Nona Parkman Willis, subject to the right of the plaintiff, at reasonable times and places, to visit the child and to have the child visit him. It is further ordered that plaintiff be condemned to pay to defendant for the support of the child the sum of $25 per month, beginning on the date that this decree becomes final, and to pay also all costs of this proceeding. In all other respects the judgment is affirmed.

2021-01-26 17:08:59.453078+00

http://www.courts.state.ny.us/reporter/3dseries/2021/2021_00373.htm

Onofre v City of New York (2021 NY Slip Op 00373) Onofre v City of New York 2021 NY Slip Op 00373 Decided on January 21, 2021 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: January 21, 2021 Before: Renwick, J.P., Manzanet-Daniels, Kapnick, Kern, Kennedy, JJ. Index No. 20724/15E Appeal No. 12935 Case No. 2020-4693 [*1]Jaime Onofre, Plaintiff-Appellant, v The City of New York et al., Defendants-Respondents. Elefterakis, Elefterakis & Panek, New York (Oliver R. Tobias of counsel), for appellant. Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered May 6, 2019, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Defendants established prima facie that the individual defendant, who was operating a snowplow and removing snow from the street when he allegedly struck the parked car in which plaintiff was seated, did not act in conscious "disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow" (Deleon v New York City Sanitation Dept., 25 NY3d 1102, 1105 [2015] [internal quotation marks omitted]; Vehicle & Traffic Law § 1103[b]). The driver testified that he exercised his judgment before proceeding down the street and that he believed he had at least a foot of clearance from the parked cars, and plaintiff himself testified that he saw the driver moving slowly, i.e., at a speed of about five miles an hour (see Harris v Hanssen, 161 AD3d 1531, 1533 [4th Dept 2018]). In opposition, plaintiff failed to raise an issue of fact. His argument that the mere decision to proceed down the narrow street with a large rear loader, rather than a pick-up truck outfitted with a snowplow, manifested the driver's recklessness, is unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: January 21, 2021

2021-01-26 17:08:59.979377+00

http://www.courts.state.ny.us/reporter/3dseries/2021/2021_00372.htm

Matter of New York City Asbestos Litig. (2021 NY Slip Op 00372) Matter of New York City Asbestos Litig. 2021 NY Slip Op 00372 Decided on January 21, 2021 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: January 21, 2021 Before: Renwick, J.P., Manzanet-Daniels, Kapnick, Kern, Kennedy, JJ. Index No. 190063/16 Appeal No. 12925 Case No. 2020-02378 [*1]In the Matter of New York City Asbestos Litig. Seval Morgan, Individually, and as Proposed Executrix for Bernd Hildebrand, Plaintiff-Respondent, v American Home Assurance Company, Inc., et al., Defendants, Port Authority of New York and New Jersey, Defendant-Appellant. Segal McCambridge Singer & Mahoney, Ltd., New York (Michael J. McKeown of counsel), for appellant. Meirowitz & Wasserberg, LLP, New York (Kush Shukla of counsel), and Shrader & Associates, Houston TX (Bradley Peek, of the bar of the State of Texas, admitted pro hac vice, of counsel), for respondent. Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered October 21, 2019, which denied the motion of defendant Port Authority of New York and New Jersey (Port Authority) for summary judgment insofar as it sought dismissal of the Labor Law § 200 and common-law negligence claims, unanimously affirmed, without costs. Plaintiff's decedent, who died in 2015, allegedly contracted malignant pleural sarcomatoid mesothelioma as a result of exposure to asbestos-containing products in the course of his employment with Pan American World Airways, Inc. (Pan Am) at John F. Kennedy International Airport in the 1970s. There are at least issues of fact as to whether defendant "had the authority to control the activity bringing about the injury," "namely, the application of asbestos-containing materials" in the airport terminal where decedent worked (Matter of New York Asbestos Litig., 146 AD3d 461, 461, 462 [1st Dept 2017], appeal dismissed 29 NY3d 1141 [2017]). Under a lease agreement between Port Authority and Pan Am, before Pan Am commenced any construction work at the airport as required under the agreement, Pan Am needed to obtain Port Authority's advance approval to Pan Am's specifications, including as to "materials." The lease also gave Port Authority the right to conduct testing on samples of the materials. A witness who was Pan Am's project manager at times relevant to this action testified that Port Authority "dictated what had to be done," and "would make a determination" as to which "material" needed to be "remove[d] or not remove[d]." The project manager also testified that Port Authority's resident engineers inspected the site to ensure compliance with Port Authority's specifications (see id. at 462). In addition, testimony by decedent's Pan Am coworker, who remembered her "constant interaction" with decedent in the terminal, raised issues of fact as to whether the regular application of asbestos-containing products in the terminal caused decedent to be exposed to asbestos fibers in the air. It does not avail Port Authority to argue that some of the coworker's testimony was inadmissible hearsay. Plaintiff, as the party opposing summary judgment, "may be permitted to demonstrate acceptable excuse for [a] failure to meet the strict requirement of tender in admissible form" (Zuckerman v New York, 49 NY2d 557, 562 [1980]). In this case, decedent died without being deposed, and the allegations center on occurrences in the 1970s. Moreover, any evidence that would be inadmissible at trial is not the sole basis for the finding that there are issues of fact (see Matter of New York City Asbestos Litig., 7 AD3d 285, 285 [1st Dept 2004]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: January 21, 2021

2021-01-26 17:09:00.214561+00

http://www.courts.state.ny.us/reporter/3dseries/2021/2021_00371.htm

Matter of Howell v New York City Dept. of Bldgs. (2021 NY Slip Op 00371) Matter of Howell v New York City Dept. of Bldgs. 2021 NY Slip Op 00371 Decided on January 21, 2021 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: January 21, 2021 Before: Renwick, J.P., Manzanet-Daniels, Kapnick, Kern, Kennedy, JJ. Index No. 100162/19 Appeal No. 12940 Case No. 2020-03328 [*1]In the Matter of Everton Howell, Petitioner, v New York City Department of Buildings, Respondent. Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York (Paul N. Gruber of counsel), for petitioner. James E. Johnson, Corporation Counsel, New York (Julie Steiner of counsel), for respondent. Determination of respondent, dated October 12, 2018, which adopted the Administrative Law Judge's recommendations, after a hearing, and revoked petitioner's Master Fire Suppression Piping Contractor's license, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Joan A. Madden, J.], entered November 12, 2019), dismissed, without costs. Substantial evidence supports the findings that petitioner failed to cooperate with respondent's investigation and failed to maintain and report his place of business, demonstrating negligence, incompetence, lack of knowledge and disregard of the relevant laws (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]; Administrative Code of City of NY § 28-401.19[6], [7]). The record shows that petitioner failed to testify at the hearing and offered no excuse or mitigating factors. Under the circumstances, the penalty of license revocation does not shock our sense of fairness (see Matter of Harvey v New York City Dept. of Bldgs., 180 AD3d 434 [1st Dept 2020]; see also Matter of Unity Home Care Agency, Inc. v New York State Dept. of Health, 171 AD3d 419 [1st Dept 2019]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: January 21, 2021

2021-01-26 17:09:00.455098+00

http://www.courts.state.ny.us/reporter/3dseries/2021/2021_00366.htm

Matter of Caldwell v Brezenoff (2021 NY Slip Op 00366) Matter of Caldwell v Brezenoff 2021 NY Slip Op 00366 Decided on January 21, 2021 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: January 21, 2021 Before: Renwick, J.P., Manzanet-Daniels, Kapnick, Kern, Kennedy, JJ. Index No. 161541/18 Appeal No. 12928 Case No. 2019-04680 [*1]In the Matter of Myrtle Caldwell, Petitioner, v Stanley Brezenoff, as Interim Chair of the New York City Housing Authority, et al., Respondents. Brooklyn Defender Services, Brooklyn (Alexandra Dougherty of counsel), for petitioner. Lisa Bova-Hiatt, New York (Hanh H. Le of counsel), for respondents. Determination of respondents (collectively, NYCHA), dated August 10, 2018, which, after a hearing, sustained charges of nondesirability for possession and sale of a controlled substance, and terminated petitioner's tenancy, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Eileen A. Rakower, J.], entered on or about August 1, 2019) dismissed, without costs. Initially, we note that NYCHA cannot rely on the charge alleging breach of rules and regulations, which was not addressed in the administrative determination being challenged (see Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 758 [1991]). Nonetheless, the determination is supported by substantial evidence in the record, given witness testimony that petitioner was observed selling crack cocaine outside a public housing development, from a car with out-of-state tags that had been identified by complaints to police, and evidence that twist bags of crack cocaine were recovered from her possession on two occasions (CPLR 7803[4]; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 179-182 [1978]). Petitioner's "drug-related activity endangered her neighbors and the community" (Matter of Dougall v Rhea, 106 AD3d 434, 435 [1st Dept 2013]; see Matter of Dubose v New York City Hous. Auth., 113 AD3d 423, 423 [1st Dept 2014]). Her plea to a lesser charge "does not affect [NYCHA]'s right to penalize the underlying conduct or render the evidence submitted at the hearing unsubstantial" (Matter of Whitted v New York City Hous. Auth., 110 AD3d 447, 448 [1st Dept 2013]). Contrary to petitioner's contention, the specification of charges provided "specific grounds for termination" (24 CFR 966.4[l][3][ii]), and listed the single category of nondesirability for which petitioner and NYCHA submitted post-hearing arguments. There was no due process violation, since "[s]he was provided a hearing, was represented by counsel, submitted mitigating evidence, and testified on h[er] own behalf" (Matter of McCadney v Olatoye, 170 AD3d 626, 627 [1st Dept 2019]). Nor did the Hearing Officer violate lawful procedure by failing to comply with NYCHA's termination policy regarding the contents of the decision, as it discussed all relevant issues raised at the hearing, the specific findings as to whether the charges were proven, and the reasons therefor (see CPLR 7803[3]). Indeed, the Hearing Officer considered and rejected petitioner's testimony, and we perceive no grounds to overturn the Hearing Officer's credibility determinations (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]; Matter of Prado v New York City Hous. Auth., 116 AD3d 593, 593 [1st Dept 2014]). Under the circumstances, we do not find the penalty shocking to one's sense of fairness (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck[*2], Westchester County, 34 NY2d 222, 233 [1974]; Matter of Hill v New York City Hous. Auth., 111 AD3d 462, 463 [1st Dept 2013]; Matter of Whitted, 110 AD3d at 448). We have considered petitioner's remaining contentions and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: January 21, 2021

2021-01-26 17:09:00.687898+00

http://www.courts.state.ny.us/reporter/3dseries/2021/2021_00363.htm

Matter of Afia E. v Japheth S. (2021 NY Slip Op 00363) Matter of Afia E. v Japheth S. 2021 NY Slip Op 00363 Decided on January 21, 2021 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: January 21, 2021 Before: Renwick, J.P., Manzanet-Daniels, Kapnick, Kern, Kennedy, JJ. Docket No. F-00268-07/18B Appeal No. 12926 Case No. 2020-00156 [*1]In the Matter of Afia E., Petitioner-Respondent, v Japheth S., Respondent-Appellant. Richard L. Herzfeld, P.C., New York (Richard L. Herzfelf of counsel), for appellant. Appeal from order, Family Court, Bronx County (Phaedra F. Perry, J.), entered on or about December 12, 2019, which determined, after a hearing, that respondent father was in willful violation of a child support obligation and sentenced him to incarceration for a term of four months, unanimously dismissed, without costs. The appeal from that part of the order that committed the father to the custody of the Department of Corrections for a term of four months is dismissed as academic, since the period of incarceration was suspended (see Matter of Elizabeth L. Kevin O., 179 AD3d 404, 405 [1st Dept 2020]). Moreover, the father's appeal from the finding of his willful violation of a child support order made by the Support Magistrate and confirmed by the Family Court must be dismissed because the finding was made upon his default and he failed to move to vacate the default (see id.). In any event, the court properly confirmed the Support Magistrate's finding that the father willfully violated the support order. There is a statutory presumption that the father had sufficient means to support the child (see Family Ct Act § 437; Matter of Powers v Powers, 86 NY2d 63, 68-69 [1995]), and the evidence that the father failed to pay support as ordered constituted "prima facie evidence of a willful violation" (Family Ct Act § 454[3][a]). The burden then shifted to the father to present "some competent, credible evidence of his inability to make the required payments" (Powers, 86 NY2d at 70). The father did not meet this burden because he failed to present evidence showing that he made reasonable efforts to obtain gainful employment (see Matter of Jennifer D. v Artise C.J., 154 AD3d 578 [1st Dept 2017]). As to the arrears, there is no reason to disturb the amount set by the court. The father failed to proffer good cause for having failed to seek modification of the support order (see Matter of Dox v Tynon, 90 NY2d 166 [1997]). Furthermore, the father's argument that the amount should be reduced pursuant to Family Ct Act § 413(1)(g) is unpreserved. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: January 21, 2021

2021-01-26 17:09:01.041733+00

http://www.courts.state.ny.us/reporter/3dseries/2021/2021_00365.htm

Louis F. Burke PC v Aezah (2021 NY Slip Op 00365) Louis F. Burke PC v Aezah 2021 NY Slip Op 00365 Decided on January 21, 2021 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: January 21, 2021 Before: Renwick, J.P., Manzanet-Daniels, Kapnick, Kern, Kennedy, JJ. Index No. 654778/16 Appeal No. 12942N-12942NA Case No. 2020-02060 [*1]Louis F. Burke PC, Plaintiff-Respondent, v Ahmed Aezah et al., Defendants-Appellants. Joseph A. Altman, P.C., Bronx (Joseph A. Altman of counsel), for appellants. Winget, Spadafora & Schwartzberg, LLP, New York (Anthony D. Green of counsel), for respondent. Orders, Supreme Court, New York County (David B. Cohen, J.), entered November 21, 2019, which, to the extent appealed from, directed defendants to produce previously court-ordered discovery, and denied defendants' motion to amend the answer to assert a counterclaim for overpayment, unanimously affirmed, without costs. The motion court providently exercised its discretion in ordering the production of documents subsequent to the filing of the note of issue (see e.g. Cabrera v Abaev, 150 AD3d 588 [1st Dept 2017]). The motion court also providently exercised its discretion in imposing sanctions, which were merely conditional and triggered only upon defendants' failure to comply with prior court orders that defendants repeatedly violated. Plaintiff's good faith affirmation submitted in support of the motion was sufficient, considering plaintiff's repeated attempts to obtain the discovery (22 NYCRR 202.7; Suarez v Shapiro Family Realty Assoc., LLC, 149 AD3d 526, 526-527 [1st Dept 2017]). The motion court also properly denied defendants' motion to amend the answer to assert a counterclaim for overpayment. Based on the affirmation defendants submitted in support of their motion, the proposed counterclaim was premised on plaintiff's purported failure to achieve a promised "quick settlement" in underlying legal matters. However, this Court has already addressed and rejected this theory of recovery (168 AD3d 600 [1st Dept 2019]), and defendants have not alleged any new basis for this Court to find that the previously rejected allegations are anything less than futile. We have considered defendants' remaining contentions and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: January 21, 2021

2020-12-01 14:01:37.748176+00

https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019vv0941-21-0

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: October 29, 2020 *************************** RALPH F. HARPER, * No. 19-941V * Petitioner, * Special Master Sanders v. * * SECRETARY OF HEALTH * Dismissal; Insufficient Proof; AND HUMAN SERVICES, * Influenza (“Flu”) and Pneumococcal Conjugate * Vaccines; Transverse Myelitis (“TM”) Respondent. * * *************************** David A. Tierney, Rawls Law Group, P.C., Richmond, VA, for Petitioner. Sarah C. Duncan, U.S. Department of Justice, Washington, DC, for Respondent. DISMISSAL1 On June 28, 2019, Ralph Harper (“Petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program2 (“Vaccine Program” or “Program”). 42 U.S.C. § 300aa-10 to 34 (2012). Petitioner alleged that he developed transverse myelitis (“TM”) as a result of the flu and pneumococcal conjugate vaccines he received on September 28, 2016. Pet. at 1, ECF No. 1. The information in the record, however, does not show entitlement to an award under the Program. On September 15, 2020, Petitioner filed an unopposed motion for a decision dismissing his petition. ECF No. 17. In his motion, Petitioner conceded that “[a m]otion to [s]how [c]ause filed by [R]espondent, and a subsequent status conference with the Special Master, as well as investigation of prior similar cases has demonstrated to [P]etitioner that he will be unable to prove that he is entitled to compensation in the Vaccine Program.” Id. at 1. He continued, “[i]n these circumstances, to proceed further would be unreasonable and would waste the resources of the Court, the [R]espondent, and the Vaccine Program.” Id. Respondent had no objection to Petitioner’s motion. Id. at 2. 1 This decision shall be posted on the United States Court of Federal Claims’ website, in accordance with the E- Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the Internet. In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other information that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, the I agree that the identified material fits within the requirements of that provision, such material will be deleted from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755 (“the Vaccine Act” or “Act”). Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).  To receive compensation under the Program, Petitioner must prove either (1) that he suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—corresponding to the vaccination, or (2) that he suffered an injury that was actually caused by a vaccine. See §§ 13(a)(1)(A), 11(c)(1). An examination of the record did not uncover any evidence that Petitioner suffered a “Table Injury.” Further, the record does not contain persuasive evidence that Petitioner’s alleged injury was caused by the flu and/or pneumococcal conjugate vaccines. Under the Act, petitioners may not be given a Program award based solely on their claims alone. Rather, the petition must be supported by medical records or the opinion of a competent physician. § 13(a)(1). In this case, the medical records are insufficient to prove Petitioner’s claim, and at this time, Petitioner has not filed a supportive opinion from an expert witness. Therefore, this case must be dismissed for insufficient proof. The Clerk shall enter judgment accordingly.3 IT IS SO ORDERED. s/Herbrina D. Sanders Herbrina D. Sanders Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice renouncing the right to seek review. 2

2020-11-20 19:32:57.381418+00

JAMES R. HARRIS and MARY E. HARRIS, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent Harris v. Commissioner Docket No. 30022-81 United States Tax Court T.C. Memo 1983-544; 1983 Tax Ct. Memo LEXIS 243; 46 T.C.M. (CCH) 1298; T.C.M. (RIA) 83544; September 6, 1983. *243 Petitioners failed to file income tax returns for 1975, 1976, and 1977, and failed to appear for trial. Respondent's motion for judgment on the underlying deficiency and for the addition to tax under sec. 6654 for failure to properly prosecute, GRANTED. Respondent's motion under Rule 91(f) that facts stated in proposed stipulation of facts be deemed admitted, GRANTED. Held: Evidence was sufficient to prove that underpayment of tax was due to fraud. Addition to tax for fraud approved. Cynthia J. Olson, for the respondent. DRENNEN MEMORANDUM FINDINGS OF FACT AND OPINION DRENNEN, Judge: Respondent determined deficiencies in petitioners' income tax and additions to tax as follows: James R. HarrisAdditions to Tax Tax YearDeficiencySec. 6653(b)Sec. 6654 1975$29,296$14,648 1976$33,039$16,520$1,230 1977$49,807$24,904$1,772 Mary E. Harris 1 1975$32,788$16,394 1976$36,680$18,340$1,367 1977$48,504$24,252$1,726 At the time the petition in this case was filed petitioners, James R. Harris and Mary E. Harris, husband and wife, resided in Apple Valley, California. Petitioners did not file income tax returns *244 for 1975, 1976 or 1977. 2 A notice setting this case for trial in Denver, Colorado on May 9, 1983, was served on the parties February 8, 1983. The notice stated that the parties were expected to be present at that time and that "your failure to appear may result in dismissal of the case and entry of decision against you." The notice also advised the parties they were expected to stipulate undisputed facts before trial and "your failure to cooperate may result in dismissal of the case and entry of decision against you." When this case was called for trial in Denver, Colorado, petitioners did not appear and no appearance was made in their behalf. Petitioners had filed a response to the notice of hearing wherein they stated that they would rely on their "Request for Remand and Summary Dismissal," which the Court had previously denied for reasons appearing in the transcript. Respondent thereupon moved for judgment on the underlying deficiency *245 and on the addition to tax under section 6654 for failure of petitioners to properly prosecute and produce evidence. Since petitioners had the burden of proof on both of these issues and produced no evidence, this motion was granted. Doncaster v. Commissioner,77 T.C. 334">77 T.C. 334, 336 (1981). Thus, the only issue remaining for decision is whether petitioners are liable for the addition to tax for fraud under section 6653(b). 3 Respondent has the burden of proof on the fraud issue. Rule 142(b). 4 In support of that burden respondent moved, pursuant to Rule 91(f)(3), that the matters set forth in his proposed stipulation of facts, which had been submitted to petitioners, be deemed admitted. 5 Respondent offered evidence that he had repeatedly attempted to confer with petitioners prior to trial to obtain a stipulation of facts, without success, and that he had forwarded his proposed stipulation of facts to petitioners on several occasions but they had failed to agree to it. In a belated written response to the Court's order to show cause why respondent's motion should not be granted, petitioners simply challenged *246 the jurisdiction of the Tax Court to decide this case without a jury. This argument has been denied many times by many Courts. See Swanson v. Commissioner,65 T.C. 1180">65 T.C. 1180 (1976). Respondent's motion that the facts stated in the proposed stipulation of facts be deemed admitted was granted. 6*247 Doncaster v. Commissioner,supra;Rechtzigel v. Commissioner,79 T.C. 132">79 T.C. 132 (1982), affd. 703 F.2d 1063">703 F.2d 1063 (8th Cir. 1983); Gilday v. Commissioner,62 T.C. 260">62 T.C. 260 (1974). Respondent then offered additional evidence on the fraud issue. 7 A brief resume of the facts gleaned from the record follows. FINDINGS OF FACT During the years at issue, James R. Harris, (hereinafter petitioner) was employed as Chief of Radiology at St. Mary Desert Valley Hospital in Apple Valley, California. Petitioner received one-third of the gross revenue of the radiology department at the hospital. Petitioner received compensation from the hospital for the years 1975, 1976 and 1977, in the amounts of $80,377.48, $108,063.00, and $153,530.00, respectively. These payments were received by checks which were deposited in the joint checking account of James and Mary Harris. Petitioner also owned a clinical practice which he operated as a sole proprietorship. He received income from this source which he deposited in his business checking account in the amounts of $110,715.65 in 1975, $107,765.77 in 1976, and $110,666.44 in 1977. Petitioner retained the services of a certified public accountant, Richard H. Miers, Jr., to perform various *248 accounting services for petitioner and his sole proprietorship for the years 1975, 1976 and 1977. Petitioner provided Miers with cash receipts and sales journals, check stubs, bank statements and cancelled checks for this purpose. The financial statements prepared by Meirs show gross income from the sole proprietorship in the amounts of $103,814.04, $105,789.17, and $107,389.91 for the years 1975, 1976 and 1977, respectively. Petitioner incurred deductible business expenses totalling $57,389 in 1975, $67,002 in 1976, and $78,552 in 1977. Petitioners timely filed a 1974 Federal income tax return showing a tax liability of $24,431.08. Petitioners made estimated tax payments totalling $24,432 for 1975. Miers prepared and delivered to petitioners four quarterly estimated income tax declarations (Forms 1040-ES) for 1976, each showing a payment due of $10,239. Petitioners did not file these forms and made no estimated tax payments for 1976 or for 1977. Miers prepared and delivered to petitioners a 1975 Federal income tax return showing Schedule C gross receipts (including both the hospital and sole proprietorship income) of $184,058. Petitioners did not file that return. Petitioners *249 told Meirs not to prepare a 1976 income tax return for them because they were having someone else prepare one. Respondent determined petitioners' taxable income for each of the years in issue from third-party records. Shortly after respondent's special agent notified petitioners in 1978 that their returns were being audited, both petitioners began withdrawing funds from their bank accounts and either depositing them in banks in Canada and New York, or using them to buy gold or certificates of deposit. Petitioners also transferred real estate owned by them to their son for no consideration, or to Mary in her maiden name. On July 24, 1981 respondent made jeopardy assessments against petitioners, under the authority of section 6861, for taxes, additions to tax, and interest due for the years 1975, 1976, and 1977. FINDING OF ULTIMATE FACT Petitioners underpaid their income taxes for the years 1975, 1976, and 1977 in the amounts determined by respondent in the notice of deficiency, and each such underpayment was due to fraud with intent to evade tax. OPINION Respondent has the burden of proving fraud by clear and convincing evidence. Section 7454(a); Rule 142(b); Professional Services v. Commissioner,79 T.C. 888">79 T.C. 888, 929 (1982); *250 Stone v. Commissioner,56 T.C. 213">56 T.C. 213, 220 (1971). The existence of fraud is a question of fact to be determined from consideration of the entire record. Gajewski v. Commissioner,67 T.C. 181">67 T.C. 181, 199, affd. without published opinion, 578 F.2d, 1383 (8th Cir. 1978). However, since direct evidence of fraudulent intent is seldom available, respondent may meet his burden of proof through circumstantial evidence derived from an examination of the taxpayer's entire course of conduct. Brountas v. Commissioner,73 T.C. 491">73 T.C. 491, 587 (1979), revd. on other grounds, 692 F.2d, 152 (1st Cir. 1982). We find that the evidence clearly and convincingly supports a conclusion that the underpayments of tax by petitioners for the years 1975, 1976, and 1977 were due to fraud with intent to evade tax on the part of both petitioners. While the failure to file returns is not itself enough to establish fraud, the deliberate failure to file returns over a period of years with full knowledge that returns were due is a strong indication of fraud. Beaver v. Commissioner,55 T.C. 85">55 T.C. 85 (1970); Gajewski v. Commissioner,supra;Powell v. Granquist,252 F.2d. 56 (9th Cir. 1958). "An extended pattefiling plus some 'convincing *251 affirmative indication' of the requisite specific intent to defraud warrants imposition of the addition to tax for fraud." Grosshandler v. Commissioner,75 T.C. 1">75 T.C. 1, 19 (1980). Such affirmative indications are present here. Petitioners presumably were intelligent professional people who knew that their incomes were sufficient to require them to file returns. They had filed a joint return for 1974. They employed a C.P.A. to audit their books and records and prepare tax returns for them. They supplied the C.P.A. with the information he required to make the returns. The C.P.A. prepared an income tax return for them to file for the year 1975 but they failed to file it or any other return. The C.P.A. prepared declarations of estimated tax for petitioners for 1976 but they neither filed the declarations nor paid the estimated tax shown to be due thereon. They advised the C.P.A. not to prepare a return for them for 1976 because they were having someone else prepare a return for them. This was not true. Petitioners have given no explanation of why they suddenly decided to stop filing returns or paying any tax. The only assignment of error contained in the petition, in addition to *252 a demand for a jury trial, was the repeated argument that respondent failed to establish facts sufficient to show the receipt of gross receipts by petitioners which would require them to file returns. Petitioners have not denied that petitioner James received very sizeable amounts of income from his medical practice in each of the years involved nor do they claim that such income is non-taxable. The only conclusion can be that petitioners deliberately decided they would evade the payment of income taxes by not filing returns. This is supported by petitioners' conduct after they were advised that respondent was conducting an audit of their income tax liability. Both petitioners immediately started withdrawing funds from their bank accounts and buying gold and certificates of deposit. They also opened bank accounts in Canada and New York and deposited some of the withdrawn funds into those accounts. They also transferred real estate they owned to their son for no consideration. In one of these transactions the real estate was first deeded to Mary Emma House, which was petitioner Mary's maiden name, and then transferred to the son. We also believe petitioners' refusal to stipulate *253 known, or easily ascertainable, facts about their income, and their failure to appear for trial, supports the conclusion that their failure to file tax returns and pay any tax for the years 1975, 1976, and 1977 was due to fraud with intent to evade tax. 8 We find for respondent on the fraud issue. Decision will be entered for the respondent. Footnotes

2021-09-01 10:11:02.037444+00

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2020-11-20 19:18:23.118657+00

A. T. SACKETT, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Sackett v. Commissioner Docket No. 7577. United States Board of Tax Appeals 4 B.T.A. 1074; 1926 BTA LEXIS 2066; September 27, 1926, Decided *2066 Salary earned prior to marriage may be reported by the wife in her separate return. A. T. Sackett pro se. A. Calder Mackay, Esq., for the respondent. MORRIS *1074 This is a proceeding for the redetermination of a deficiency of $90.16, income tax for 1923. The deficiency arises from the inclusion in the income of petitioner of the income of his wife prior to their marriage. *1075 FINDINGS OF FACT. Petitioner resides in Los Angeles, Calif. On July 17, 1923, he and Dorothy Thurston Sackett were married. Prior to her marriage, Dorothy Thurston Sackett received as salaries, wages, and commissions, $728.50 which were reported by her and added by the Commissioner to the petitioner's taxable income. OPINION. MORRIS: We are of the opinion that the Commissioner erred in including the separate property of the wife as income of the husband. Prior to July 17, 1923, the petitioner had no control whatsoever over the income of Dorothy Thurston Sackett. The community status existed only from that date and affects only income received thereafter. If we had any doubts as to this amount being her separate property, the doubts would be*2067 removed by section 162 of the Civil Code of California, which expressly states that earnings and property of the wife before her marriage constitute and remain her separate property thereafter and are not subject to the incidents of the community property law. Judgment for the petitioner.

2020-11-20 19:22:11.808875+00

Arthur D. Thomson and Mary C. Thomson, Petitioners, v. Commissioner of Internal Revenue, Respondent; Arthur G. B. Metcalf, Petitioner, v. Commissioner of Internal Revenue, Respondent Thomson v. Commissioner Docket Nos. 1099-63, 1717-63 United States Tax Court July 28, 1964, Filed *67 Decision will be entered under Rule 50. Arthur G. B. Metcalf and Mary C. Thomson (formerly Metcalf) were divorced by decree nisi of Probate Court of Norfolk County, Mass., November 13, 1950, which became final on May 14, 1951. On November 10, 1950, they entered into an agreement relative to support of Mary and their minor children. The agreement provided for reduction in amounts of payments if Mary remarried or if a child died, reached majority, or became self-supporting. The decree of November 13, 1950, provided for a payment to Mary of the amount set forth in the agreement for support of herself and the minor children. In late 1954 Mary remarried and upon her petition the Probate Court on January 18, 1955, entered a decree for a payment to her by Arthur of $ 125 a week for support of the minor children. In a prior case involving the year 1951 we held that the agreement of November 10, 1950, survived the decree of November 13, 1950, and that the agreement earmarked an amount payable for support of minor children. The Court of Appeals, First Circuit, affirmed our decision. The Supreme Court in Commissioner v. Lester, 366 U.S. 299">366 U.S. 299 (1961),*68 overruled our holding in the prior case. Held: (1) The payments made by Arthur to Mary discharged the obligation for payment for support of minor children imposed by the decree of January 18, 1955, and therefore under sections 71 and 215, I.R.C. 1954, are not includable in Mary's income or deductible by Arthur even though such payments also discharged the surviving contractual obligation of Arthur under the November 10, 1950, agreement. (2) Arthur has not properly pleaded collateral estoppel and the doctrine of collateral estoppel is inapplicable because of differences in issues, controlling law, and facts between the prior Metcalf case and the instant case. (3) Arthur has failed to establish that he is entitled to any dependency credits in addition to those allowed him by respondent. Grafton J. Corbett, Jr., for the petitioners Arthur D. Thomson and Mary C. Thomson. John Barr Dolan, for the petitioner Arthur G. B. Metcalf. Raoul E. Paradis, for the respondent. Scott, Judge. SCOTT *826 OPINION Respondent determined deficiencies in the income tax of Arthur D. and Mary C. Thomson for the calendar years 1955, 1956, 1957, and 1958, in the amounts of $ 3,082.58, $ 2,691.34, $ 3,100.27, and $ 3,305.78, respectively, and determined deficiencies in the income tax of Arthur G. B. Metcalf for the calendar years 1955, 1956, 1957, 1958, and 1959 in the amounts of $ 3,801.55, $ 1,677.10, $ 51.56, $ 1,273.74, and $ 437.15, respectively. The issues for decision are: (1) Whether payments made by Arthur G. B. Metcalf to Mary C. Thomson in the amount of $ 6,350 in *70 the year 1955 and in the amount of $ 6,500 in each of the years here in issue subsequent to the year 1955 are includable in the income of Mary C. Thomson and deductible by Arthur G. B. Metcalf. (2) Whether Arthur G. B. Metcalf is entitled to deductions for dependency exemptions in each of the years here involved for four of his minor children. All of the facts have been stipulated and are found accordingly. Arthur G. B. Metcalf, the petitioner in docket No. 1717-63 (hereinafter referred to as Arthur), and Mary C. Thomson (formerly Mary C. Metcalf, hereinafter referred to as Mary), one of the petitioners in docket No. 1099-63, were, prior to their divorce under a decree entered November 13, 1950, husband and wife. On September 26, 1954, Mary married Arthur D. Thomson. Mary and Arthur D. Thomson filed joint Federal income tax returns for each of the calendar years 1955, 1956, 1957, and 1958 with the district director of internal revenue for the district of Massachusetts. Arthur filed an individual income tax return for each of the taxable years 1955, 1956, 1957, 1958, and 1959 with the district director of internal revenue for the district of Massachusetts. On November 10, 1950, Arthur*71 and Mary and their respective trustees entered into an agreement which recited that Arthur and Mary were living apart, that Mary intended to take immediate steps to prosecute a libel for divorce, that they desired to effect an agreement through the medium of their trustees whereby they might settle their respective property rights, and that the parties mutually agreed that: *827 A. The Husband [Arthur] covenants with the Trustee for the Wife [Mary]: 1. To pay to the Wife on the first day of each week during the lifetime of this agreement, the first payment to be made on Monday, November 20, 1950, the sum of One Hundred Fifty ($ 150) Dollars for the support and maintenance of the Wife and their five minor children, and in addition to pay all medical expenses incurred by or on behalf of any of said children and all bills for tuition at private schools incurred by or on behalf of said children, subject to the following conditions: a. Upon the death of the Wife, all payments hereunder shall cease. b. Upon the remarriage of the Wife the said weekly payments shall be decreased by Twenty-Five ($ 25) Dollars. c. As each child reaches the age of twenty-one (21) years or dies before*72 reaching such age or marries or becomes self-supporting the said weekly payments shall be decreased by Twenty-Five ($ 25) Dollars. 2. The Wife shall have custody of their five minor children, provided, however, that if the Wife remarries, the Husband shall have the option of petitioning the Probate Court for the custody of the minor children. If custody is granted to the Husband, all payments hereunder shall cease. * * * * B. The Wife covenants with the Trustee for the Husband: 1. To permit the Husband to visit with the children at all reasonable times and to allow the children to visit him at all reasonable times, such visits not to be made at a time or times when they would interfere with the normal activities of the children, such as school, and more specifically to allow the husband to have the children stay with him as follows: a. One weekend every month. b. Two Sundays every month from 10 a.m. to 10 p.m. c. One week during the Christmas holidays. d. Two weeks during the summer vacation period. e. One week during the Easter holidays or at some other holiday season in the year. * * * * E. This agreement shall be construed under the laws of the Commonwealth of Massachusetts. *73 F. The provisions of this agreement with respect to the support of the wife and children and the custody of the children shall be brought to the attention of the court at the time of hearing on the libel, and so much thereof shall be embodied in the decree of the court as it deems proper. The decree nisi entered by the Probate Court for Norfolk County, Mass., on November 13, 1950, granted Mary a divorce from Arthur, and provided as follows with respect to the custody of the children and the support of Mary and the children: that the care and custody of their minor children, namely: Anne C. Metcalf, Helen C. Metcalf, Mary L. Metcalf, Arthur G. B. Metcalf, Jr., and Hope S. Metcalf be and it hereby is awarded to the said libellant with the right to the libellee to see said children at reasonable times. The libellee is ordered to pay to the libellant for the support of the libellant and said minor children the sum of one hundred fifty dollars on Saturday, November 18, 1950, and the further sum of one hundred fifty dollars on each and every Saturday thereafter until the further order of the Court. The libellee is also to pay all medical and private school tuition and expenses of the*74 children all until the further order of the Court. *828 The decree made no reference to the written agreement between Arthur and Mary dated November 10, 1950. The decree of the Probate Court entered November 13, 1950, became absolute on May 14, 1951. On June 6, 1951, Mary filed a petition for modification of the decree of the Norfolk County Probate Court of November 13, 1950, seeking to have the amount of the weekly payments for the support of herself and her minor children increased. Pursuant to this petition, a decree was entered by the Probate Court of Norfolk County on November 23, 1951, in which the decree of November 13, 1950, was altered and modified "by increasing the order for support of said Mary C. Metcalf and the minor children of the parties from one hundred fifty dollars per week to one hundred seventy-five dollars per week commencing on Saturday, November 24, 1951, and payable on each and every Saturday thereafter," and further altering and modifying the decree of November 13, 1950, by substituting for the clause giving Arthur the right to see the children at reasonable times a clause giving him more specific rights in this respect, which clause was in the exact*75 language contained in paragraph B1 of the agreement of November 10, 1950. On January 5, 1954, a petition for modification of the decree of November 13, 1950, with reference to the custody of Anne C. Metcalf was filed in the Norfolk County Probate Court by Arthur. In accordance with this petition on April 21, 1954, the Norfolk County Probate Court entered the following decree: It is Decreed that the decree of this Court dated November 13, 1950 as modified by decree of November 23, 1951, be further modified and altered by granting the custody of Anne C. Metcalf, minor child of the parties, to said petitioner; with the right to the respondent to visit and enjoy the companionship of said minor child at any and all reasonable times as may be mutually agreed upon by the petitioner and respondent, all until the further order of the Court. On September 27, 1954, counsel for Mary wrote to counsel for Arthur advising that Mary had married the previous day and further stating: Under the terms of the property settlement agreement dated May 10, 1950, it is provided that upon her remarriage, the weekly payments due her should be decreased by $ 25.00. In view of the above, I would suggest that*76 Mr. Metcalf send Mrs. Thompson the sum of $ 150 per week in the future rather than the sum of $ 175 contained in the decree of the Probate Court dated November 23, 1951. Inasmuch as the money is payable in advance and the check for this week has already been received, I would suggest that next week's check be in the sum of $ 125 as Mr. Metcalf would be entitled to a credit in that amount. On October 14, 1954, Mary filed a petition in the Norfolk County Probate Court in which she recited the provisions of the decree of November 13, 1950, with respect to the amounts to be paid to her for her support and the support of the minor children under that decree *829 and the modifications of the decree entered by the court on November 23, 1951, with respect to the payments to be made and April 21, 1954, with respect to the granting of the custody of Anne C. Metcalf to Arthur, and that on September 26, 1954, she had married Arthur D. Thomson. This recital was followed by the following prayer: Wherefore, your petitioner prays, (1) That this honorable court establish such amount as the court shall determine to be paid for the support of said Helen C. Metcalf, Mary L. Metcalf, Arthur G. *77 B. Metcalf, Jr., and Hope S. Metcalf, from September 26, 1954. (2) And for such other and further relief as to this honorable court may be deemed meet and proper. On January 18, 1955, the Norfolk County Probate Court entered the following decree: ON the petition of Mary C. Thomson, formerly Mary C. Metcalf of Milton in said County, who was the libellant in a libel for divorce brought by her against Arthur G. B. Metcalf, praying that this honorable Court establish such amount as the Court shall determine to be paid for the support of Helen C. Metcalf, Mary L. Metcalf, Arthur G. B. Metcalf, Jr. and Hope S. Metcalf, minor children of the parties, from September 26, 1954 and for such other and further relief as to this honorable Court may be deemed meet and proper, for the reasons set forth in said petition. Arthur G. B. Metcalf having had due notice of said petition and objection being made thereto; It is decreed that the decree of this Court dated November 13, 1950 as modified by decrees of November 23, 1951 and April 21, 1954 be further modified by reducing the order of support from one hundred seventy-five dollars per week to one hundred twenty-five dollars per week for the support*78 of Helen C. Metcalf, Mary L. Metcalf, Arthur G. B. Metcalf, Jr. and Hope S. Metcalf, minor children of the parties, the first payment to be made on Saturday, January 22, 1955 and payable on each and every Saturday thereafter until the further order of the Court. For the year 1955 Arthur deducted as an alimony payment to Mary the amount of $ 6,350 which deduction was disallowed by respondent. In each of the years 1956 and 1957, Arthur deducted an amount of $ 6,500 as an alimony payment to Mary which deduction in each of these years was disallowed by respondent. On his income tax return for each of the years 1958 and 1959 Arthur claimed a dependency exemption for Helen C., Mary Lee, Hope S., Anne C., and Arthur G. B. Metcalf, Jr., which claimed dependency deductions were disallowed by respondent, except for that of Anne C. Metcalf. On their joint income tax returns for the years 1955, 1956, 1957, and 1958 Arthur D. and Mary C. Thomson included no amount as income from alimony received by Mary from Arthur, and claimed no deduction for a dependency exemption for any of Mary's children. Respondent in his notice of deficiency for each of these years increased the income as reported by*79 Mary C. and Arthur D. Thomson by an *830 amount of $ 6,500 1 which he explained as being alimony income received from Arthur but did not allow any additional deduction for dependency exemptions. Respondent in his brief states that he has disallowed the deduction to Arthur for alimony payments while including such payments in Mary's income in order to protect the revenue and that it is his position that one of the petitioners but not both should prevail on this issue. He takes the position that if this Court determines that the payments to Mary from Arthur are taxable as alimony, they are deductible by Arthur, but if this Court determines that these payments are for child support and therefore not taxable to Mary they are not deductible by Arthur. Respondent takes the position that Arthur has failed to establish that he is entitled to the dependency exemption deductions which were disallowed or to additional deductions for dependency exemptions for the years 1955, 1956, and 1957. *80 Each of the parties recognizes that the issue with respect to whether the payments here involved are includable in Mary's income and deductible by Arthur is governed by the provisions of section 71 of the Internal Revenue Code of 1954. 2 Under the provisions of this section, if the payments are not, under the terms of the decree or agreement, "fixed in terms of an amount of money or a part of the payment as a sum which is payable for the support of minor children" of Arthur, the payments are taxable to Mary and deductible by Arthur. While there are no facts in the record of the instant case to so show, it is apparent from the facts here stipulated and all parties in their arguments recognize, that the tax liabilities for the taxable year 1951 of each of the petitioners (except Mary's present husband, Arthur D. Thomson) were litigated before this Court in the case of Arthur G. B. Metcalf, 31 T.C. 596">31 T.C. 596 (1958), affd. 271 F. 2d 288 (C.A. 1, 1959). In that case we held that the amount of $ 125 per week of *831 the payments of $ 150 per week prior to November 23, 1951, and $ 175 per week thereafter, was for child support *81 and not includable in Mary's taxable income nor deductible by Arthur. *82 In our opinion we stated at page 605: the agreement was intended to and did survive the divorce, that the various decrees of the court implemented and at times supplemented the agreement, and that we must look to the agreement as well as the various court proceedings to determine whether an amount or portions of the payments were specifically designated or earmarked for the support of the children. We construed the agreement as fixing an amount for support of Arthur's minor children. The United States Court of Appeals for the First Circuit agreed with our conclusion that the agreement of November 10, 1950, fixed an amount as child support within the meaning of section 22(k) of the Internal Revenue Code of 1939, which with respect to its application to the issue here involved contains substantially the same provision as section 71 of the Internal Revenue Code of 1954. The Court of Appeals' opinion also considered Arthur's alternative position that the agreement was superseded by "the decree or decrees of the Probate Court, and is, accordingly, not presently controlling" and held adversely to his contention. Subsequent to the opinion of the United States Court of Appeals for the*83 First Circuit in Metcalf v. Commissioner, 288">271 F. 2d 288 (C.A. 1, 1959), the Supreme Court in Commissioner v. Lester, 366 U.S. 299">366 U.S. 299 (1961), held that "fix" as used in section 22(k) of the Internal Revenue Code of 1939 means "expressly specify," and that the fact that an agreement showed a sufficiently clear purpose on the part of the parties that a particular portion of the payment was for child support was not sufficient to shift the liability for tax on the amount. In a footnote, the Supreme Court referred to the opinion of the United States Court of Appeals for the First Circuit in the case of Metcalf v. Commissioner, as being contrary to the conclusion of the United States Court of Appeals for the Second Circuit in the case of Commissioner v. Lester, 279 F. 2d 354 (C.A. 2, 1960), which opinion the Supreme Court affirmed. Arthur argues that under the doctrine of collateral estoppel, this Court is bound by the decision in Arthur G. B. Metcalf, 31 T.C. 596 (1958), affd. 271 F. 2d 288 (C.A. 1, 1959), determining that*84 his payments to Mary were made under the agreement of November 10, 1950, which remained effective after the entry of the decree of November 13, 1950, and the decree of January 18, 1955, of the Probate Court of Norfolk County, Mass. Arthur contends that this determination requires a holding in his favor in the instant case since the agreement did not expressly specify an amount for child support and therefore *832 payments pursuant to this agreement are includable in Mary's income and deductible by him under Commissioner v. Lester, supra. In the instant case Arthur did not specifically plead collateral estoppel. The record in the prior case was not put in evidence. Collateral estoppel is an affirmative defense which raises an issue separate from other issues as to the proper tax liability. Only those issues raised in the pleadings are considered by this Court. Irving Segall, 30 T.C. 734">30 T.C. 734, 741 (1958), and cases there cited. However, even if the allegations of fact in Arthur's petition as to our holding in Arthur G. B. Metcalf, 31 T.C. 596">31 T.C. 596, 605 (1958), and that of the Court of Appeals in Metcalf v. Commissioner, 271 F. 2d 288,*85 were considered sufficient to put the issue of collateral estoppel before us (see Erwin Gerber, 32 T.C. 1199">32 T.C. 1199 (1959)), we hold that doctrine inapplicable to this case. Our holding and that of the Court of Appeals in the prior case was that even though the court decree in effect for the year there involved did not earmark a portion of the payment as child support, the agreement which survived this decree did earmark the amount of $ 125 a week for support of minor children. The decree entered January 18, 1955, after Mary's remarriage was the decree in effect for the years here at issue. The January 18, 1955, decree expressly specified the $ 125 per week payments to be for the support of the four minor children listed. Therefore, the issue in the instant case is not identical to that in the prior. There has also been a change in the controlling law by the decision of the Supreme Court in Commissioner v. Lester, supra, since the decisions in the prior case. Mary's remarriage after the year in issue in the prior case constitutes a factual difference with respect to the year there involved and the years involved in the instant case. Under these*86 circumstances, collateral estoppel does not apply since the matter raised in the instant case is not identical with that in the prior case and "the controlling facts and applicable legal rules" have not remained unchanged. Commissioner v. Sunnen, 333 U.S. 591 (1948). As we stated in our opinion in the prior Metcalf case (31 T.C. 596">31 T.C. 596, 605) an agreement such as the one of November 10, 1950, between Arthur and Mary and their trustees is valid under Massachusetts law. It is an enforceable contract and is not rendered void by the divorce decree unless by its terms this is intended. Freeman v. Sieve, 323 Mass. 652">323 Mass. 652, 84 N.E. 2d 16 (1949). However, as stated in the opinion of the Court of Appeals in Metcalf v. Commissioner, supra at 292: The parties cannot, by their agreement, limit the right of the probate court to order, from time to time, what it deems appropriate for alimony or support of minor children. Wilson v. Caswell, 272 Mass. 297">272 Mass. 297, 172 N.E. 251">172 N.E. 251. This principle is, in essence, *87 a one-way street. The court has no complementary power to relieve the husband of his obligations under the agreement. Schillander v. Schillander, 307 Mass. 96">307 Mass. 96, 29 N.E. 2d 686. True, it might make its order *833 for alimony and support less than the amount provided for in the agreement, but that would only affect the extent to which the wife could rely upon contempt proceedings for enforcement. It would not bar an independent action upon the agreement. Freeman v. Sieve, supra, [323 Mass. 652, 84 N.E. 2d. 16]. In the instant case the facts show that the payments made by Arthur during the years here in issue discharged a legal obligation "which because of the * * * family relationship is imposed on" him "under the decree" of January 18, 1955. The terms of the decree of January 18, 1955, "fix, in terms of an amount of money * * * as a sum which is payable for the support of minor children" of Arthur the $ 125 weekly payments. Under the specific language of sections 71 (a) and (b) the amounts received by Mary in discharge of Arthur's legal obligation imposed by the decree of January*88 18, 1955, are not includable in her income. The facts indicate that the same payment which discharges Arthur's obligation imposed under the decree of January 18, 1955, also discharges his contractual obligation incurred under the agreement of November 10, 1950. Under Massachusetts law each of these obligations existed in each of the years here involved since the agreement and the decree each imposed an obligation although one payment could discharge both. Sections 71 (a) and (b) are each written in the disjunctive. Section 71(b) provides that there shall not be included in the wife's income any payment which the terms of the "decree" or the "agreement" fix as child support. Under that section, when both the decree and the agreement are effective and enforceable, it is necessary only that one or the other of the instruments "fix" the amount as payable for support of the husband's minor children. The fact that "section 22(k) [1939 Code] reads in the disjunctive" was noted in the Court of Appeals' opinion in Metcalf v. Commissioner, supra. We hold that the payments of $ 125 a week made by Arthur to Mary after January 18, 1955, were payments which*89 the terms of the decree fixed as support of Arthur's minor children and therefore under section 71(b) are not includable in Mary's income. Since section 215 provides for the deduction by the husband only of amounts includable in the wife's income under section 71 the $ 125-a-week payments made by Arthur to Mary after January 18, 1955, and throughout the years here involved are not deductible by Arthur. Arthur, in the alternative, argues that he is entitled to four dependency exemptions for the four minor children in Mary's custody. There are no facts in the record with respect to the amount expended to support the children or whether the payments by Arthur constituted over one-half of their support. All of the facts were stipulated, and there is no mention made in the stipulated facts of the support of the *834 minor children for any of the years here in issue. Because of this failure of proof by Arthur, we sustain respondent's disallowance of his claimed dependency exemptions for his children other than Anne C. Metcalf for the years 1958 and 1959, and hold that Arthur has failed to establish that he is entitled to four additional dependency exemptions for 1955, 1956, and*90 1957. Decision will be entered under Rule 50. Footnotes

2020-01-17 22:01:34.776876+00

Smith

*591OPINION. Smith : In filing their income-tax returns for the years 1917, 1918, 1919, and 1920, each of the petitioners excluded the payments made to the estates of Arthur B. Gilmore and William T. Ulman in computing the amount of partnership income available for distribution to themselves, whereas the respondent, for each of those years, added to the amount of net income reported by the partnership the amounts paid to the estates of Gilmore and Ulman and included in the gross income of each of the partners a proportionate part of such amounts. The petitioners insist that the payments made to the estates represented partnership profits, the two estates having a right to participate in earnings of the partnership during those years and that the amounts paid were not distributable to partners as profits in the partnership. The agreement of November 30, 1907, creating the partnership of Gilmore, Pope and Ulman, contained the following provisions: Ninth, In ease of the decease of any one of the partners the two surviving partners shall have an option upon the share or interest in the partnership of the deceased partner, and the price to he paid therefor shall be the proportionate share of the deceased partner in the profits of the business for the three years succeeding the date of his decease, or at their option a cash payment equivalent thereto if the same can be determined upon by the survivors and the legal representatives of the deceased. Said option shall be exercised, if at all, within sixty days of said decease. Tenth, Upon the decease of one of the partners, in case said option shall not bo so exercised or the termination of the partnership from any other cause, a true and perfect account of all matters connected with said partnership shall *592bo made, and the expenses, leases, profits and partnership assets shall be divided between the partners in the same proportions as at that time shall govern the division of any profits. These provisions were ratified and continued in force by the agreement of April 1,1910, under which Alfred M. Bullard was admitted to the partnership, and they were in effect at the time of the deaths of the two partners, Gilmore and Ulman, in December, 1916. They were also ratified and continued in effect by the new partnership agreement of February 10, 1917. Upon the death of Gilmore and Ulman the old partnership stood dissolved. The surviving partners and the estates of the two deceased partners were the owners of the partnership assets. Each had a right to demand an accounting and a distribution of the assets, but such action' would have destroyed to a large extent the value of the main asset of the partnership, which was its life as a going business. It was manifestly to the interest of the parties to effect some arrangement whereby this asset would be conserved. It was also realized that the business could not continue without the acquisition of new partners to give the personal services formerly rendered by the two deceased partners. To meet this situation a new partnership was formed under the agreement of February 10, 1917, which consisted of Pope, Bullard, Snow, Hallahan, and Perkins. The two first named contributed to this new partnership their interests in the partnership assets of the old firm, together with their services, and the three last named contributed their services. The estates of the deceased partners, Gilmore and Ulman, through their representatives, who participated in the arrangement, contributed to the new partnership their interests in the assets of the old partnership under an agreement whereby each estate was to share in the profits of the new partnership to the extent of 22% per cent each for the three calendar years 1917, 1918, and 1919, it being understood and agreed that they were not parties to the partnership agreement as such and assumed no liability thereunder. These two estates were also paid the amounts which the two deceased partners had contributed to the cash capital of the old partnership. These two estates were not parties to the agreement of February 10, 1917, but the proof shows that they actualfy jjarticipated through their executors in the arrangement made, and the latter executed on the same day a written acknowledgment of their agreement to the arrangement effected and following this they accepted and were paid the specified proportion of the profits of the business for the years 1917, 1918, and 1919. The partnership agreement of February 10, 1917, and the agreement made with the partnership by the executors of the two estates *593did not result in the creation of a partnership relation as to those estates in view of the expressed intention of the parties that no such relationship should exist, and it is admitted by all of the parties to the proceedings before us that at no time was either of the estates a partner in the firm of Cyrus Brewer <& Co. It is insisted by the petitioners that the option given surviving partners to purchase the interest of a deceased partner was not exercised and could not be exercised, as it was conditional upon the death of one partner and could only be exercised by the remaining partners in the continuance by them of the partnership. They contend that the death of two partners created a condition which made the exercise of the option impossible. However, it is not necessary to determine whether or not the option in question could have been exercised, as we are of the opinion that the settlements made with the estates of the two partners were occasioned by and were in substantial accord with the provisions of the several partnership agreements relative thereto. Even should it be considered that the agreement with the estates was an undertaking of the surviving general partner, Pope, and special partner, Bullard, and the three new partners, Snow, Hallahan, and Perkins, who constituted the new partnership of Cyrus Brewer & Co., our decision with respect to the relationship of all parties concerned would not necessarily be altered thereby. We have previously held in Willard C. Hill et al., 14 B. T. A. 572, which case presented substantially the same agreement as the one here under review, that the agreement therein considered provided for the sale of the interest of a deceased partner to the surviving partners; that the transaction constituted a purchase of capital assets, and that there should be included in the net income of each surviving partner his distributive share of all amounts paid in accordance with the terms of the partnership agreement to the estate of a deceased partner. In the instant case we are convinced that the intention of all parties concerned, including the parties to both the old and new partnership agreements, was to prevent an accounting and distribution upon dissolution of the partnership, which action would have been less beneficial to all of them and which would have prevented- the estate of a deceased partner from getting out of the partnership the real value of the deceased partner’s interest. Consequently, we hold that here the partnership agreements under review and the separate agreement made with the new partnership and the executors of the estates of Gilmore and Ulman constituted a sale of the interests of the two estates to the new partnership. The net income of a partnership, under all the revenue acts, is to be computed in the same manner and on the same basis as in the *594case of an individual, and in the case of an individual it is provided that in computing net income there shall be allowed as deductions all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered. Since the payments made to the estates of Gilmore and Ulman obviously are not deductible expenses, they must be included in the net income of the partnership available for distribution. It is contended, however, that the payments to the two estates consisted of profits'paid to them as such and that the petitioners were not and should not be held liable to income tax in respect thereof. Relative to this position of petitioners we said, in Willard C. Hill et al., supra; * * * profits of a partnership belong to the partners. They may choose to make any disposition which they wish of such profits. They may bind themselves to pay over those profits or a portion of them for the acquisition of a capital asset. We think that no valid claim may be made that the partners are not liable to income tax in respect of their shares of the partnership profits merely because by an agreement voluntarily entered into they have bound themselves to pay those profits for the acquisition of such capital asset. A partner may not avoid the income tax under an agreement by which his share or a portion of his share of the profits of the partnership are to be paid to the estate of a deceased partner in the acquiring of such deceased partner’s interest in the assets of a prior partnership. The amounts distributable to the partners who participated in partnership profits on a percentage basis, namely, Pope, Snow, Hal-laban, and Perkins, were computed by the respondent in accordance with the following percentages: Per cent Arthur K. Pope_ 41.46 Francis S. Snow-' 24.24 Stephen J. I-Iallahan- 22. 20 Holten B. Perkins- 12.10 100. 00 The foregoing percentages were determined by considering the whole amount available for distribution to the partners as being-equal to 100 per cent of the net income of the partnership and adding to the percentages specified in the partnership agreement of February 10, 1927, that figure which would result in the same relationship among the partners on the basis of 100 per cent as resulted under the partnership agreement on a basis of 54% per cent, that is, the formula employed in each case was as follows: The percentage provided for in the partnership agreement bore the same relation to 54% per cent as the percentage employed by the respondent in computing the deficiency bore to 100 per cent. *595With this method employed by the respondent we can not agree. An examination of the history of Cyrus Brewer & Co. reveals the fact that the interest therein of Arthur W. Pope and, subsequent to his death, that of his estate, was from the beginning greatly in excess of that of any other partner, and the partnership agreement of February 10,1917, clearly indicates that the business, at least up until December 81, 1919, was considered by all to be principally that of Pope, inasmuch as that agreement provided for the major portion of the business, namely, the name and good will of Cyrus Brewer & Co., the lease, physical property and records were to go to him and that Snow, Hallaban, and Perkins were to receive only the brokerage accounts on which each had received a commission during the last year that the old partnership was in existence. It is further noted that the partnership entered into under the agreement of February 10, 1917, terminated coincident with the expiration of the three-year period that payments were to be made to the estates of Gilmore and Ulman. While there was no direct evidence on this point, we are convinced that the interest of the two estates in the old partnership which were purchased by the new partnership ultimately went to Pope and that, considering the effect of the agreement of February 10,1917, as a whole, the interest of Snow, Hallahan, and Perkins in the partnership which terminated December 31, 1919, was limited to ownership of the brokerage accounts on which each received a commission on the 1916 books. Consequently, we are of the opinion that the net income of the partnership for income-tax purposes should be distributed as follows: Per cent Pope___ 68. 00 Snow- IS. 26 Hallaban_ 12.13 Perkins_ 6. 61 100. 00 Arthur K. Pope, one of the petitioners, assigns error on the part of respondent in including as a part of his taxable income for the years 1917, 1918, 1919, and 1920, that portion of the profits received by him in these years from the partnership of Cyrus Brewer. & Co. which he in turn paid over to his mother and brother under an agreement made with his father, from whom he received his original partnership interest, that he would hold the same in trust for the latter’s estate. The father of this petitioner originally owned the interest in the old firm of Cyrus Brewer & Co. now represented by the interest of this petitioner in the present firm. The petitioner received this interest under an agreement to hold it in trust for the estate of his *596father and the latter died intestate, leaving a widow, a minor son, and petitioner as his surviving heirs. The record shows that this agreement has been acted upon and given effect continuously since the death of the father, the petitioner each month paying over to his mother and brother an agreed and definite portion of the profits received by him from the partnership. Respondent takes the position that the transaction was in effect an assignment by petitioner of a portion of his income and accordingly the total amount is taxable to him individually under the rule laid down in Ormsby McKnight Mitchel, 1 B. T. A. 143, as approved in Mitchell v. Bowers, 9 Fed. (2d) 414. In this respondent has overlooked the fact that petitioner’s mother and brother did not receive their interest in the share of the partnership standing in the name of petitioner from the latter, but inherited it from Arthur W. Pope. Petitioner received that interest under an express agreement to hold it in trust for the estate of his father, tie and his mother and brother were the sole heirs and entitled to the estate. The authorities are uniform that in the case of property, title to which is taken under an express agreement to hold in trust for one or more beneficiaries, an express trust is created and the one in whose name the property stands is no more than a trustee. Odell v. Moss, 70 Pac. 547; 137 Cal. 542; Gritten v. Dickerson, 66 N. E. 1090; 202 Ill. 372; Newman v. Schwerin, 109 Fed. 942; Craig v. Harless, 76 S. W. 594; 33 Tex. Civ. App. 257; Rice v. Rice, 65 N. W. 103; 107 Mich. 241; Wilkinson v. Stitt, 56 N. E. 830; 175 Mass. 581. This petitioner, under the rule stated, is, as to the interests of his mother and brother in the parnership interest passing to him on his father’s death, merely a trustee and any profits distributed to him are received in trust to the extent of their interests just as any other income of trust property is received. He has no beneficial interest in them. He has surrendered no interest when he pays them over to his mother and brother and the latter did not receive them as the result of an agreement made by them with petitioner. Their rights accrued as heirs of Arthur W. Pope and their agreement with petitioner as to the proportionate amounts to be paid over to them was but an incident in the performance of the trust assumed by petitioner. The rights of the parties in interest to determine an equitable division can not be questioned. Can it be said, merely because they are profits upon a partnership interest standing in petitioner’s name, that they are distributable to him and must be included in the net personal income upon which he individually must pay a tax? We have had substantially this same situation presented to us before and have drawn definitely the distinction between those cases of which Ormsby McKnight Mitchel, *597supra, is an example, where the beneficial interest in the income alone has been assigned by the party owning the corpus, and those in which the income is produced by property belonging to two jointly, although the ownership of only one was disclosed and the total income actually collected by that party, who then accounted to his undisclosed co-partner in interest for the latter’s share. In these cases we have held the individual receiving the total income taxable on only the portion in which he individually had the beneficial interest, the portion paid his associate being merely received by him in trust for such party. C. R. Thomas, 8 B. T. A. 118; see also William W. Parshall, 7 B. T. A. 318; Ralph L. Hinckley, 6 B. T. A. 312; Harry P. Kelley, 9 B. T. A. 832. In accordance with the foregoing, we hold that one-half of petitioner Arthur K. Pope’s distributive share of the profits of Cyrus Brewer & Co. should not be included in his taxable income. The deficiency will be redetermined in accord with the foregoing findings of fact and opinion. Reviewed by the Board. Judgment will be entered under Rule 50.

2021-01-26 17:09:01.553965+00

http://www.courts.state.ny.us/reporter/3dseries/2021/2021_00369.htm

Gibbs v Kings Harbor Health Servs., LLC (2021 NY Slip Op 00369) Gibbs v Kings Harbor Health Servs., LLC 2021 NY Slip Op 00369 Decided on January 21, 2021 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: January 21, 2021 Before: Renwick, J.P., Manzanet-Daniels, Kapnick, Kern, Kennedy, JJ. Index No. 23705/15 Appeal No. 12943N-12943NA Case No. 2019-2978 2019-04038 [*1]Mary Gibbs, Individually and as Administrator of the Estate of Henry Gibbs, Deceased, et al., Plaintiffs-Respondents, v Kings Harbor Health Services, LLC, Doing Business as Kings Harbor Multicare Center, Defendant-Appellant. Mauro Lilling Naparty LLP, Woodbury (Seth M. Weinberg of counsel), for appellant. Finkelstein, Blankinship, Frei-Pearson & Garber, LLP, White Plains (Jeremiah Frei-Pearson of counsel), for respondents. Order, Supreme Court, Bronx County (Joseph E. Capella, J.), entered March 7, 2019, which, inter alia, denied in part defendant's motion for a protective order and granted plaintiffs' cross motion to compel production of certain documents and for the entry of a HIPPA-qualified protective order, and order, same court and Justice, entered September 17, 2019, as corrected by order, same court and Justice, entered September 24, 2019, which, insofar as appealed from as limited by the briefs, denied defendant's motion to renew, unanimously affirmed, without costs. The court providently exercised its discretion in directing defendant to comply with plaintiffs' pre-class certification document request, which was not overbroad or unduly burdensome (see Allen v Crowell-Collier Publ. Co., 21 NY2d 403 [1968]). However, to the extent the requests seek both electronic and paper records, defendant need not produce both if the records are identical. The document request is properly directed at obtaining material that is relevant to the claims of the class as a whole. Plaintiffs' discovery should not be limited to material relevant only to the named representatives since the complaint contains allegations relating to the putative class as a whole. Defendant failed to demonstrate the applicability of the quality assurance privilege contained in Public Health Law § 2805-m (2) and Education Law § 6527(3) in that the material requested was not prepared by or at the behest of the quality assurance committee. Because defendant was required to compile the data and report to various government agencies concerning its staffing and patient care, the material is not subject to the quality assurance privilege (see Sanchez v Kateri Residence, 79 AD3d 492 [1st Dept 2010]). Defendant argues that many of the documents requested are nonexistent. However, it failed to provide an affidavit of a person who conducted the search, detailing where such records were usually maintained and the scope of the search. The court properly denied defendant's motion to renew because renewal "is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Matter of Weinberg, 132 AD2d 190, 210 [1st Dept 1987], appeal dismissed 71 NY2d 994 [1988]). Defendant did not provide a reasonable justification for its failure to present the affidavit of a person with knowledge of the facts in support of its initial motion for a protective order (see American Audio Serv. Bur., Inc. v AT & T Corp., 33 AD3d 473, 476 [1st Dept 2006]). We have considered defendant's remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: January 21, 2021

2021-01-26 17:09:01.788505+00

http://www.courts.state.ny.us/reporter/3dseries/2021/2021_00368.htm

First Mercury Ins. Co. v Preferred Contrs. Ins. Co. Risk Retention Group, LLC (2021 NY Slip Op 00368) First Mercury Ins. Co. v Preferred Contrs. Ins. Co. Risk Retention Group, LLC 2021 NY Slip Op 00368 Decided on January 21, 2021 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: January 21, 2021 Before: Renwick, J.P., Manzanet-Daniels, Kapnick, Kern, Kennedy, JJ. Index No. 653435/19 Appeal No. 12939 Case No. 2020-00159 [*1]First Mercury Insurance Company, Plaintiff-Appellant, v Preferred Contractors Insurance Company Risk Retention Group, LLC, et al., Defendants, Certain Underwriters at Lloyd's, London Subscribing to Policy Number 10268L150029, Defendant-Respondent. Kennedys CMK LLP, New York (Kristin V. Gallagher of counsel), for appellant. Furman Kornfeld & Brennan LLP, New York (Corey M. Cohen of counsel), for respondent. Order, Supreme Court, New York County (Alan C. Marin, J.), entered December 6, 2019, which granted the motion of defendant Certain Underwriters at Lloyd's, London (Lloyd's) to dismiss the complaint as against it pursuant to CPLR 3211(a)(1) and (7), unanimously reversed, on the law, with costs, and the motion denied. In this action between insurers, plaintiff (FMIC) seeks a declaration that defendant Lloyd's has a duty to defend and indemnify FMIC's insured, the property owner, in the underlying personal injury action, pursuant to an "additional insured" endorsement in the policy Lloyd's issued to the owner's construction manager. At this stage, the pleadings are sufficient to allege, and the documentary evidence does not conclusively refute, that Lloyd's named insured proximately caused the underlying accident, and thus that under the policy language (see Burlington Ins. Co. v NYC Tr. Auth., 29 NY3d 313, 322 [2017]), there is a reasonable possibility of coverage that could trigger at least a duty to defend (see BP A.C. Corp. v One Beacon Ins. Group, 8 NY3d 708, 714 [2007]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: January 21, 2021

2021-01-26 17:09:02.123839+00

http://www.courts.state.ny.us/reporter/3dseries/2021/2021_00367.htm

Dixon v Sum Realty, Co. (2021 NY Slip Op 00367) Dixon v Sum Realty, Co. 2021 NY Slip Op 00367 Decided on January 21, 2021 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: January 21, 2021 Before: Renwick, J.P., Manzanet-Daniels, Kapnick, Kern, Kennedy, JJ. Index No. 20904/17E Appeal No. 12941 Case No. 2020-02865 [*1]Lashawn Dixon, Plaintiff-Respondent, v Sum Realty, Co., Defendant-Appellant. Fleischner Potash LLP, White Plains (Robert Michael Drucker of counsel), for appellant. John E. Gray, New York (Jason Levine of counsel), for respondent. Order, Supreme Court, Bronx County (George J. Silver, J.), entered June 10, 2020, which denied defendant's motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant the motion as to the claim related to the handrails of the subject staircase, and otherwise affirmed, without costs. While plaintiff's initial deposition testimony was later contradicted by the affidavit she submitted in opposition to defendant's motion, after a break in the deposition, she testified that she had misspoken, and changed her testimony significantly as to how her fall on defendant's staircase occurred. Plaintiff's latter version of the accident is, in the main, consistent with her affidavit. Thus, while the change of testimony mid-deposition presents an issue of credibility for the jury, the affidavit does not present the kind of feigned issue of fact that requires the court to disregard the affidavit (compare Telfeyan v City of New York, 40 AD3d 372, 373 [1st Dept 2007] [affidavit prepared for litigation that directly contradicts affiant's previous deposition testimony without explanation insufficient to defeat summary judgment]; Beahn v New York Yankees Partnership, 89 AD3d 589 [1st Dept 2011]; Matas v Clark & Wilkins Indus., Inc., 61 AD3d 582 [1st Dept 2009], lv denied 13 NY3d 703 [2009]). Since plaintiff's expert relied upon the version of the accident described in plaintiff's affidavit, his affidavit was properly considered (compare Amaya v Denihan Ownership Co., LLC, 30 AD3d 327 [1st Dept 2006] [plaintiff's expert affidavit unsupported by evidence and plaintiff's affidavit tailored to dovetail with expert affidavit and to avoid consequences of deposition testimony properly rejected]; Vilomar v 490 E. 181st St. Hous. Dev. Fund Corp., 50 AD3d 469 [1st Dept 2008] [plaintiff's companion's affidavit properly rejected as tailored to avoid consequences of plaintiff's deposition testimony]). Plaintiff's inability to identify uneven riser heights as the cause of her fall is not fatal to her claim, as her post-break deposition testimony permits the inference that her fall was caused by uneven riser heights (see e.g. Berr v Grant, 149 AD3d 536 [1st Dept 2017]; see also Tomaino v 209 E. 84th St. Corp., 72 AD3d 460 [1st Dept 2010]). However, plaintiff's affidavit presents a feigned issue of fact as to whether her fall was caused by any defect of the staircase handrails and must be disregarded with respect thereto (see Fernandez v VLA Realty, LLC, 45 AD3d 391 [1st Dept 2007]; Pippo v City of New York, 43 AD3d 303, 304 [1st Dept 2007]). Plaintiff testified consistently through the entirety of her deposition that she was not holding the handrail, that it was her custom and practice not to use handrails on short flights of steps, and that at no time during her fall did she attempt, or even think of attempting, to put her hand on the handrail. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST [*2]DEPARTMENT. ENTERED: January 21, 2021

2021-01-26 17:09:02.38658+00

http://www.courts.state.ny.us/reporter/3dseries/2021/2021_00364.htm

Blue Riv. Gems Inc. v S.V.&V. Diamond Corp. (2021 NY Slip Op 00364) Blue Riv. Gems Inc. v S.V.&V. Diamond Corp. 2021 NY Slip Op 00364 Decided on January 21, 2021 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: January 21, 2021 Before: Renwick, J.P., Manzanet-Daniels, Kapnick, Kern, Kennedy, JJ. Index No. 151453/15 Appeal No. 12931-12931A-12931B Case No. 2020-01431 [*1]Blue River Gems Inc., Plaintiff-Respondent, v S.V.&V. Diamond Corp., Defendant, Michael Gross Diamonds Inc., Defendant-Appellant. Ofeck & Heinze, LLP, New York (Mark F. Heinze of counsel), for appellant. Weg & Myers, P.C., New York (Joshua L. Mallin of counsel), for respondent. Judgment, Supreme Court, New York County (Shlomo Hagler, J.), entered January 16, 2019, in favor of plaintiff in the principal amount of $260,000.03, unanimously affirmed, with costs. Appeals from order, same court (David B. Cohen, J.), entered on or about January 3, 2017, which, insofar as appealed from as limited by the briefs, granted plaintiff's motion for summary judgment on liability as to its conversion claim, and from order, same court (Shlomo Hagler, J.), entered on or about December 14, 2018, which granted plaintiff's motion for summary judgment on damages, unanimously dismissed, without costs, as subsumed by the appeal from the judgment. Plaintiff was properly awarded judgment on its claim for conversion of a gold and diamond necklace. We decline to consider defendant Michael Gross Diamonds Inc.'s (MGD's) argument that plaintiff sold the necklace in October 2013 because it is raised for the first time on appeal and relies on a document that was not before the court on the liability motion. To the extent MGD claims that plaintiff improperly concealed that document, the proper remedy would have been to move to vacate the liability order based on newly discovered evidence (see CPLR 5015[a][2]). MGD's entrustment defense fails because MGD was not a "buyer in ordinary course of business" (see UCC 1-201(b)(9), 2-403[2]). If the account of defendant S.V.&V. Diamond Corp. (SVV) is credited, then MGD could not have acted in good faith because it would have essentially stolen the necklace that was given to it on consignment (see UCC 1-201[b][9]). If MGD's account is credited, then MGD would have admittedly accepted the necklace in partial satisfaction of a debt (see UCC 1-201[b][9]; Sherman v Roger Kresge, Inc., 67 Misc2d 178, 180 [County Ct, Broome County 1971], affd 40 AD2d 766 [3d Dept 1972]; Fleet Capital Corp. v Yamaha Motor Corp., U.S.A., 2002 US Dist LEXIS 18115, *56-62, 2002 WL 31174470, *17-18 [SD NY Sep. 26, 2002]) and would also have failed to investigate the provenance of the necklace despite the existence of "red flags" indicating possible problems with ownership (see UCC 1-201[9]; Dorothy G. Bender Found., Inc. v Carroll, 126 AD3d 585, 586-587 [1st Dept 2015], lv denied 26 NY3d 905 [2015]; Overton v Art Fin. Partners LLC, 166 F Supp 3d 388, 401 [SD NY 2016]). MGD may not properly challenge the damages order on appeal because it was entered on default (see CPLR 5511; Figiel v Met Food, 48 AD3d 330, 330 [1st Dept 2008]). MGD's proper remedy was to move to vacate the default and, if that was denied, to appeal the order denying the motion to vacate (see CPLR 5015[a][1]; Figiel, 48 AD3d at 330). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: January 21, 2021

2020-11-20 19:22:41.902223+00

Israel Steingold and Norma T. Steingold v. Commissioner. Steingold v. Commissioner Docket No. 66852. United States Tax Court T.C. Memo 1959-134; 1959 Tax Ct. Memo LEXIS 116; 18 T.C.M. (CCH) 592; T.C.M. (RIA) 59134; June 29, 1959 *116 Additions to tax: Failure to file declaration of estimated tax: Reasonable cause. - Taxpayer, an attorney, failed to file a declaration of estimated tax for the year 1954. His explanation was that he relied on statements made by individuals in newspaper and magazine articles and upon advice of accountants to the effect that assessments of the additions to tax for failure to file and failure to pay the estimated tax were not enforced where a return was filed with payment of the full amount of tax on or before January 15 of the following taxable year. The Tax Court held that taxpayer's reliance on these statements and advice did not constitute reasonable cause. Therefore, taxpayer was liable for the additions to tax for failure to file a declaration of estimated tax and for substantial underestimation of the estimated tax. Lewis B. Greenbaum, Esq., for the petitioners. Ferd J. Lotz, Esq., for the respondent. TRAIN Memorandum Findings of Fact and Opinion TRAIN, Judge: Respondent determined a deficiency in addition to income tax of the petitioners for the taxable year 1954 in the amount of $927.93 for failure to file a declaration of estimated tax and for substantial underestimation *117 of estimated tax, as provided by sections 294(d)(1)(A) and 294(d)(2) of the Internal Revenue Code of 1939. The issues are: (1) Whether petitioners' failure to file a declaration of estimated tax for the year 1954 was due to reasonable cause; and (2) Whether petitioners substantially underestimated their estimated tax for the year 1954. Findings of Fact Petitioners are husband and wife and residents of Richmond, Virginia. They filed a joint individual income tax return for the calendar year 1954 with the district director of internal revenue at Richmond, Virginia. Israel Steingold has been actively engaged in the practice of law for many years and derives substantially all of his income therefrom. For the years 1949, 1950, and 1953, he received gross income from the practice of law in the respective amounts of $16,456.28, $15,594.45, and $21,319. For the years 1951 and 1952, petitioners' tax returns reveal the following: Minimum NetGross YearIncomeExpensesIncome 1951$3,149.76$16,002.90$19,152.66 19524,384.1416,892.1921,276.33 During the year 1954, Israel's gross income received from the practice of law was as follows: 1/ 1/54- 3/ 1/54$ 8,204.17 3/ 2/54- 6/ 1/549,651.06 6/ 2/54- 9/ 1/546,546.98 9/ 2/54-12/31/5422,883.32 $47,285.53 **118 Israel discussed with the two certified public accountants, Hyman B. Swartz, who was until 1948 an internal revenue agent, and A. David Krell and with other accountants prior to and during the taxable year 1954 the matter of filing declarations of estimated tax. Swartz advised him that it was the policy of the Internal Revenue Service in the Richmond area not to assess any penalty if a final return, with payment, was made by January 15 of the following taxable year. Israel read newspaper and magazine articles discussing the manner of filing tax returns, and generally expressing the same opinion about filing estimated tax returns. Neither Swartz nor Krell nor any of the authors of the various articles specifically advised against filing estimated tax returns. However, Israel relied on the information received from the accountants and newspaper articles and did not file declarations of estimated tax for the year 1954. Israel received a single fee of $16,000 in the month of October 1954. Subsequent to 1951, and prior to 1954, respondent asserted additions to the tax against petitioners for violation of section 294(d)*119 in the total amount of $66.85. In June 1953, petitioners signed Form 870, Waiver of Restrictions on Assessment and Collection of Deficiency in Tax and Acceptance of Overassessment, thereby agreeing to the assessment of certain deficiencies for 1950 and 1951 and additions to tax for violation of section 294(d) of the 1939 Code for the year 1951. Petitioners' failure to file a declaration of estimated tax for the year 1954 was not due to reasonable cause. Petitioners substantially underestimated their estimated tax for the year 1954. Opinion Petitioners failed to file a declaration of estimated tax for the year 1954 as required by section 58(a) of the 1939 Code. Respondent accordingly determined that petitioners are subject to additions to tax for that year pursuant to section 294(d)(1)(A) and (d)(2) of the 1939 Code. Petitioners' explanation for failing to comply with the requirements of section 58(a) is that Israel relied on statements made by individuals in newspaper and magazine articles and upon advice of accountants to the effect that the Internal Revenue Service would not enforce the provisions of the Code assessing additions to tax for failure to file and failure to pay the estimated *120 tax where a return was filed with payment of the full amount of tax on or before January 15 of the following taxable year. However, the accountant did not specifically advise petitioner not to file. Under this circumstance, this Court has held that such reliance does not constitute reasonable cause. Harold C. Marbut, 28 T.C. 687">28 T.C. 687 (1957). Petitioners do not otherwise argue the applicability of section 294(d), except insofar as there is imposed a double penalty. Petitioners make no new arguments and no attempt to distinguish the earlier cases in which this Court has held that the two additions to tax pursuant to section 294(d)(1)(A) and (d)(2) are properly imposed where there has been a failure to file and a failure to estimate the tax. Harry Hartley, 23 T.C. 353">23 T.C. 353 (1954), also 23 T.C. 564">23 T.C. 564 (1954). Accordingly, we hold that petitioners are liable for the addition to tax pursuant to section 294(d)(1)(A) and (d)(2) for failure to file a declaration of estimated tax and for substantial underestimation of the estimated tax. Decision will be entered for the respondent. Footnotes

2012-04-17 05:16:07+00

http://bulk.resource.org/courts.gov/c/F3/50/50.F3d.1038.94-6586.html

50 F.3d 1038 Daniels v. Mead Coated Board, Inc.* NO. 94-6586 United States Court of Appeals, Eleventh Circuit. Mar 13, 1995 1 Appeal From: M.D.Ala., No. 93-00753-CV-D-E, 858 F.Supp. 1103 2 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3

2020-11-20 19:22:12.33149+00

BANNER BUILDING COMPANY, INC., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Banner Bldg. Co. v. Commissioner Docket No. 105605. United States Board of Tax Appeals April 7, 1942, Promulgated *802 1. Petitioner was organized under the laws of the State of Kentucky as a corporation with a stated capital stock. This capital stock was represented by shares of $10 par value which were sold to the members of a fraternal beneficiary society operating under the lodge system, which society is itself exempt from taxation under section 101, Revenue Act of 1936. Petitioner acquired, improved, and has ever since operated a building in Louisville, Kentucky, on which it collects rents, and in which it operates bowling alleys and a bar from which it collects revenue from members of the fraternal beneficiary society and the general public. In the taxable year petitioner had net income from these and other sources. Held, petitioner is not an exempt corporation under section 101, Revenue Act of 1936. 2. During the taxable year petitioner's officers, who were also the officers of the fraternal beneficiary society and the members of such society, conducted bingo parties and other similar activities in petitioner's building to raise revenue to further supplement petitioner's net income and turned over the net proceeds of such parties to petitioner. The fraternal beneficiary society*803 in question had the use of lodge rooms in petitioner's building without any definite payment therefor. Held, the net receipts from these bingo and other parties paid into petitioner's treasury represented taxable income, and the Commissioner is sustained in including these net receipts in petitioner's income. Charles Roser, Esq., for the petitioner. Frank M. Cavanaugh, Esq., for the respondent. BLACK *858 The respondent determined deficiencies in the petitioner's income and excess profits taxes for the fiscal year ended November 30, 1938, in the total amount of $361.20. In determining these deficiencies respondent made several adjustments in the income and deductions as reported on petitioner's income tax return. Some of these adjustments were in petitioner's favor and some of them operated to increase petitioner's net income. None of them are contested in this proceeding. After making these adjustments the respondent held that petitioner was not an exempt corporation under section 101 of the Revenue Act of 1936. The petitioner denies liability upon the ground that it is an exempt corporation under section 101(3), (6), (9) and (14) *804 of the Revenue Act of 1936. The petitioner also alleges that the respondent erred in treating money turned over to it during the taxable year by Banner Council No. 39 Jr. O.U.A.M. as income from rents, and not donations or deposits. FINDINGS OF FACT. The petitioner is a corporation with principal place of business in the city of Louisville, Kentucky. It filed its income and excess profits tax return for the taxable year with the collector of internal revenue for the district of Kentuckt, at Louisville. The petitioner was incorporated on January 1, 1908, by members of Banner Council No. 39, hereinafter called Banner Council, a local lodge unit of the Junior Order of United American Mechanics, a fraternal beneficiary society. The purpose for which the petitioner was organized is stated by its incorporators in a prelude to its printed bylaws and articles of incorporation reading as follows: *859 THE OBJECT. The object of the Banner Building Company is to erect a suitable place for Banner Council No. 39 Jr. O.U.A.M. to hold its meetings and to arrange for its members regular club quarters. It is also the intention to make this a paying proposition and for this*805 reason we have formed a stock Corporation company in conjunction with Banner Council No. 39 and it is hoped that each and every member will lend his assistance. Pertinent provisions of its charter are as follows: Article 3. The corporation is formed for the purpose of acquiring land in Louisville, Kentucky and erecting thereon a building, which building is to be used as a Lodge Hall and leased for Lodge purposes, but said building and parts thereof may be used and leased for other purposes. For these purposes said corporation shall have the right to purchase, acquire, own and sell all necessary real and personal property. Article 4. The capital stock of the corporation is fixed at $15,000, to be divided into fifteen hundred shares of $10.00 each. * * * Article 7. The affairs of the corporation shall be conducted by a Board of twelve (12) Directors, one of whom shall be elected by the Board as President. Said Board of Directors shall also elect one of its members as Vice President, one of its members as Secretary and one as Treasurer. The Board of Directors shall have the right to appoint and vest in the officers or agents of the Corporation the power to appoint such*806 subordinate officers, agents or servants as they may deem proper. The Directors are to be elected annually at a stockholder's meeting to be held at the office of the company in Louisville, Kentucky on the first Monday in January of each year. The directors are to hold office until their successors are elected and qualified. The bylaws provide that only Banner Council or its members shall be allowed to become stockholders or own any stock in the petitioner, and gives Banner Council the right to purchase the stock of any stockholder at any time by giving 30 days' notice to the stockholder and to the petitioner. Section 16 of the bylaws of petitioner provides as follows: Each member shall be entitled to a certificate of stock, designating the number of his shares, which shall be issued in the name and under the seal of this Company, signed by the President and attested by the Secretary, which certificate shall be transferable only to Banner Council No. 39 Jr. O.U.A.M. or members thereof, by assignment in person or by attorney, in the presence of the Secretary and to be approved by the Board of Directors. Each certificate of stock shall be conspicuously marked with the number*807 and the date of issue. No certificates of stock shall be issued until same are fully paid. Members desiring to transfer or sell their stock shall give the Board of Directors 30 days' notice. Section 21 of these bylaws provides: DIVIDENDS AND RESERVE FUND. The Board of Directors shall determine semi-annually how much of the earnings shall be set apart to the Reserve Fund for the payment of contingent losses, and the residue of said earnings shall be divided among the shareholders. Soon after completing organization, the petitioner's incorporators offered its capital stock to members of Banner Council at $10 per *860 share on small weekly payments. Most of the members purchased petitioner's stock and have ever since remained its stockholders. Some of the shareholders, who have died, have had their stock purchased by Banner Council. With funds derived from the sale of stock and from borrowings, the petitioner purchased its present home office building at 318 East Broadway, in the city of Louisville, Kentucky, for the price of $14,600. The condition of the property when purchased is not shown in the record, the testimony merely showing it to be a building about*808 100 feet wide on East Broadway and extending back to the alley in rear and three stories high at the front and two stories high at the rear. The petitioner remodeled and improved the building at an expenditure of some thirty or forty thousand dollars, which it raised through an issue of mortgage bonds. The improvement included conversion of the first floor into an auditorium and dance hall, intended for rental to the public at commercial rates; also a clubroom for use of members of Banner Council, and a refreshment bar, primarily for use of club members but open to the public generally. On the second floor provision was made for the petitioner's office and the office of Banner Council, and the balance of the space was divided into two lodge rooms, one large and one small, suitably furnished and equipped for the holding of lodge meetings. The third floor of the building was made into living quarters for the building janitor. For a number of years the petitioner rented its auditorium and dance hall from time to time for public gatherings, meetings, entertainments, bazaars, dances, and like activities. It frequently donated use of the hall to churches and societies engaged in furthering*809 religious and charitable causes. The auditorium and hall, however, proved not to be a paying facility and, after several years of operating with continuing losses, the petitioner converted the space occupied by it into eight bowling alleys at an expenditure of $20,000, which it borrowed from a local bank. Since installation the bowling alley enterprise has been petitioner's largest source of income. Banner Council and members use the petitioner's lodge rooms, club, and other facilities without paying anything therefor except in the manner hereinafter indicated. When not required for Banner Council, the lodge rooms are rented to outside organizations at the rate of $4 a night for the large room and $2 a night for the small room. The gross rentals from these rooms, plus receipts from the bowling alleys and the bar, are insufficient to meet the petitioner's operating expenses, and to further augment its income members of Banner Council regularly conduct picnics and bingo parties as money raising affairs, the profits from which are turned over to the petitioner's treasurer without condition. The petitioner sometimes borrows money from Banner Council, and at the end of the taxable*810 year owed to the latter a *861 considerable sum for money borrowed. The petitioner has never declared dividends upon its capital stock, or otherwise distributed profits among its stockholders. It paid, however, annually to some of its stockholders over a period of some five or six years, 3 percent upon their respective investments in its stock upon the theory that the investments constituted temporary loans to it for the period following the organization. It discontinued these payments about the year 1918. The petitioner pays no salaries to its officers and directors except to its secretary and treasurer, respectively, these being limited by its bylaws to $100 and $25 per annum. Frequently members of Banner Council render valuable services to petitioner in the form of making repairs and improvements to its building without making any charge therefor. In its income and excess profits tax return for the taxable year, the petitioner reported gross income in the amount of $25,960.05, of which $423 was derived from rentals, and the rest from other income, explained in schedule E of the return as follows: ITEM 13 - OTHER INCOME $5,589.39Picnics, other donations. 13,143.67Bowling Alleys. 6,803.99Refreshments & Bar. $25,537.05Total *811 Petitioner took deductions of $24,701.98 on its return, none of which are in controversy in this proceeding. Petitioner's return showed net income of $1,258.07, but petitioner paid no taxes upon the claim that it was and is a fraternal organization exempt from taxation on income under section 101 of the Revenue Act of 1936. Petitioner's income tax return for the taxable year contained the following, designated as: SPECIAL NOTE Banner Building Company is exempt from the Federal Income Tax in accordance with 101. "Exemption from Tax on Corporation" Sec. 3. Fraternal beneficiary societies, Orders, or Associations (a) operating under the Lodge System or for the exclusive benefit of the members of a fraternity itself operating under the Lodge System and (b) providing for the payment of life, sick, accident or other benefits to the members of such Socity, Order, or Association or their dependents. The respondent, as has already been stated, denied petitioner's claim for exemption and determined the deficiencies in question. OPINION. BLACK: In support of its claim for exemption as a fraternal beneficiary society, the petitioner pleads specifically the benefits of*812 paragraphs *862 (3), (6), (9), and (14) of section 101 of the Revenue Act of 1936. Exemption is claimed under facts stated in the petition as follows: (b) That the petitioner is a Fraternal beneficiary society, operating under the lodge system for the exclusive benefit of the members of Banner Council No. 39, Junior Order United American Mechanics, a fraternity itself operating under the lodge system; and the petitioner does operate indirectly through Banner Council No. 39 and does assist Banner Council in the payment of sick and death claims, and provides for other relief and assistance to its own members in addition to helping all other worthy public causes both private and governmental. (c) That the petitioner does not operate for profit and no part of its net earnings is now, nor has it ever inured to the benefit of any member or individual. Nor has any person ever secured any profits from the petitioner and no one can received any personal gain or profits in the future. The paragraphs in section 101 of the Revenue Act of 1936 relied upon by petitioner are printed in the margin. 1 *813 Considering first the petitioner's contention that it is a fraternal beneficiary society within the meaning of paragraph (3), supra, it is obvious, we think, that the contention must be denied. The section is clear in limiting its benefits solely to societies "(A) operating under the lodge system or for the exclusive benefit of the members of a fraternity itself operating under the lodge system" and (B) "providing for the payment of life, sick, accident, or other benefits to the members of such society, order, or association or their dependents." It seems clear of course that Banner Council No. 39 Jr. O.U.A.M. is a fraternal beneficiary society within the meaning of the above quoted law and is exempt from Federal taxation. The respondent concedes that is true, but Banner Council is not before us for taxation. Clearly, it is not the same entity as the Banner Building Co., which is the petitioner in the instant case, and it is *863 futile, we think, under the showing which has been made to argue that the petitioner meets either of the requirements for exemption above named. First, its charter is that of a capital stock corporation operating under a board of directors, *814 and not a fraternal organization operating under the lodge system. Stock of a par value of $10 per share was actually issued to stockholders who paid in the amounts which they subscribed for it. This stock is still outstanding, so far as the record shows, although some of it is in the hands of others than those to whom it was originally issued. The purpose for which the corporation was organized, as declared in its charter, are purely business purposes, which comprehend earning of profits. The bylaws anticipate the distribution of profits among the stockholders, and in section 21, after directing the directors to determine semiannually how much shall be set apart for a contingent loss fund, provide that the residue of the earning shall be divided among the shareholders. These provisions of the charter and bylaws are determinative of the petitioner's true character as a corporation. ; American Surety Co. v. 14 Canal St., 276 Mass. 119; *815 ; ; ; ; . Under authority of these decisions we decide against the petitioner on the first point urged. Likewise, under the same authorities and under the same line of reasoning, without repeating it, petitioner is not exempt under section 101(6) or (9). We hold against its contentions that it is exempt under these provisions. The petitioner's claim for classification as a holding corporation under paragraph (14) likewise can not be sustained. A holding c0mpany under this paragraph is one which has been organized for the exclusive purpose of holding title to property, collecting the income therefrom and turning over the entire amount, less expenses, to an exempt association. The petitioner has not shown that it was organized for any such purpose. Again we refer to its charter and bylaws for proof of its corporate form and purpose, which in neither respect are within the paragraph. The petitioner*816 contends, however, notwithstanding its charter provisions, that it was organized to serve the purposes of a building holding company for Banner Council, and has so operated since its organization to and including the taxable year. It contends, that actual operations rather than corporate form are the test of its right to be exempted under the law. We need not discuss the law involved in this last claim, since the record fails to show the petitioner's compliance in respect to operations. An *864 essential requirement of a holding company under the paragraph pleaded is that it turn over income from the property held, less expenses, to an exempt association. The petitioner has not shown that it was under any legal obligation to turn over any of its funds to Banner Council No. 39 Jr. O.U.A.M., nor has it shown that it did in fact pay over any of its said funds to Banner Council. The failure in this essential precludes its classification as an exempt corporation under this provision. ; affd., *817 . The petitioner is not sustained in this contention. There remains to be considered whether or not the respondent erred in treating as part of petitioner's gross income the net receipts from bingo parties, and picnics conducted by Banner Council and members and turned over to the petitioner during the taxable year. The petitioner contends that these payments were gifts or deposits from Banner Council and its members. The respondent stated his position respecting these payments in a paragraph of the deficiency notice as follows: Respecting the various sums turned over to you by Banner Council No. 39, and claimed by you to be contributions or deposits, it is held that all such sums and monies were rental income to you paid by Banner Council No. 39 for use and occupancy by it of your premises. Whether or not the respondent correctly classed these payments as rents, we need not decide. We think that, under the evidence in this proceeding, he correctly included them as part of the petitioner's gross income and must be sustained. The petitioner contends that the payments were gifts from Banner Council and members to it. Gifts are defined as the voluntary*818 transfer of property from one person to another, without any consideration, or compensation therefor. ; . To be without consideration means without obligation to the donee, as might be discharged or paid by the transfer. In our opinion Banner Council and its members can not be said to be without obligation to the petitioner in this case. They enjoy at all times and without cost free use of its building, rooms, club, and all other rental facilities. These facilities are used in conducting the money raising affairs here discussed. The petitioner's committees and officers assist in conducting said parties and its treasurer receives the profits from all of them. The petitioner is a stock corporation operating for the purpose of earning income. It pays taxes on the property which it owns. For the taxable year in question it deducted for taxes $1,499.78. It pays for repairs to its building. It pays interest on its bonded and other indebtedness. Obviously it must collect money for the use of its facilities to meet *865 these and other expenses, *819 and there appears to be no good reason why it should not collect from Banner Council No. 39. This it did in the form of net profits from bingo parties and picnics. The petitioner concedes that the parties are given for its exclusive benefit, the purpose being to supplement its revenues to meet deficiencies in its operating income. We think petitioner has failed to show that these payments were transfers of property made to it without motivating considerations and therefore in establishing that they constituted gifts. On this point the petitioner is not sustained. Decision will be entered for the respondent. Footnotes

2021-09-01 13:00:47.770982+00

http://media.ca11.uscourts.gov/opinions/unpub/files/202012578.pdf

USCA11 Case: 20-12578 Date Filed: 09/01/2021 Page: 1 of 11 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 20-12578 ________________________ Agency No. A208-742-381 MARIA ERCILIA MARTINEZ-GOMEZ, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (September 1, 2021) Before JILL PRYOR, LUCK, and BRASHER, Circuit Judges. PER CURIAM: Maria Ercilia Martinez-Gomez petitions for review of the Board of Immigration Appeals’s decision dismissing her appeal of the immigration judge’s  USCA11 Case: 20-12578 Date Filed: 09/01/2021 Page: 2 of 11 denial of her application for asylum.1 After careful review and with the benefit of oral argument, we deny the petition. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Martinez-Gomez is a native and citizen of Honduras. She entered the United States without inspection and the government charged her with being removable. Martinez-Gomez conceded removability and filed an application for asylum, withholding of removal, and relief under the Convention Against Torture.2 Martinez-Gomez alleged in her application that she feared persecution and torture if removed to Honduras because of her membership in a particular social group. 3 She stated that she fled Honduras after she was threatened by Mara 18 gang members. The gang threatened her, Martinez-Gomez alleged, because she was a single mother and refused to sell drugs for them. She feared the Maras would torture or kill her if she returned to Honduras because she reported the gang to the police, but the authorities “had no control over” them and didn’t “protect women or children 1 Although Martinez-Gomez’s daughter is not included in the case caption, she was a derivative applicant on her mother’s asylum application and Martinez-Gomez’s petition for review lists her as a party. Thus, she is a party to this petition. 2 Martinez-Gomez’s petition seeks review of the denial of her asylum claim but does not seek review of the denial of her claims for withholding of removal and relief under the Convention Against Torture. 3 Martinez-Gomez alleged in her application that she was also seeking asylum because of her religion. But she did not rely on this ground at the removal hearing and does not raise any issues related to religious persecution in her petition. 2  USCA11 Case: 20-12578 Date Filed: 09/01/2021 Page: 3 of 11 from abuse.” In support of her application, Martinez-Gomez submitted articles and reports describing the conditions and ongoing gang violence in Honduras. The immigration judge held a hearing on Martinez-Gomez’s application. Martinez-Gomez told the immigration judge that she had reviewed her application with her attorney. She swore under oath that the information in her application was “all true and accurate.” Her attorney stated that Martinez-Gomez’s asylum claim was based on her membership in the particular social group of single mothers threatened by gang members for refusing to sell drugs. The government argued that this wasn’t a cognizable social group and requested Martinez-Gomez’s removal. The immigration judge observed that “if the parties agree, the court may swear the respondent to the contents of the application” and rely on the asylum application to reach its decision. The immigration judge asked whether the parties wanted to stipulate that if Martinez-Gomez testified “fully,” she would testify consistently with her application. Her counsel stated—twice—that he wanted “to stipulate to that.” Her counsel also stated there were “no changes” to Martinez- Gomez’s claim since her application had been filed. The immigration judge asked the government if it would stipulate. Counsel for the government responded that “[i]f you’re going to find that [the proposed social group] isn’t a ground to move forward and that there’s no basis to do so, then I don’t have a problem stipulating that this is what she’s going to say.” Martinez-Gomez 3  USCA11 Case: 20-12578 Date Filed: 09/01/2021 Page: 4 of 11 didn’t object to this statement and didn’t seek to withdraw her consent to the stipulation. The immigration judge accepted the parties’ stipulation that, as to Martinez-Gomez’s asylum and withholding of removal claims, she would testify consistently with her application if she “were to testify fully.” Martinez-Gomez then testified about her claim under the Convention Against Torture. After her counsel finished questioning her, he didn’t elicit any additional information related to her asylum claim. The immigration judge then asked Martinez-Gomez’s counsel if he wished to present argument. Counsel declined to make a statement and stood on her application. The immigration judge denied Martinez-Gomez’s application and ordered her removal. As to Martinez-Gomez’s asylum claim, the immigration judge concluded that she hadn’t established past persecution because there was “no evidence that the Maras harmed her” or “did anything to her,” and isolated incidents of threats or intimidation didn’t amount to persecution. The immigration judge then concluded there was no evidence establishing a well-founded fear of future persecution. There was no proof that anyone had threatened Martinez-Gomez or her children since she left Honduras, the immigration judge observed, even though five of her children still lived there. The immigration judge alternatively concluded that Martinez-Gomez had failed to establish that any persecution was based on a protected ground. There was 4  USCA11 Case: 20-12578 Date Filed: 09/01/2021 Page: 5 of 11 no nexus between Martinez-Gomez’s alleged persecution and a protected ground, the immigration judge concluded, because her proposed social group—single mothers threatened by the Mara gang for refusing to sell drugs—was not a cognizable social group for purposes of asylum. The immigration judge concluded that Martinez-Gomez’s social group didn’t satisfy the particularity requirement because it was “amorphous” and “overbroad,” and didn’t satisfy the social distinction requirement because Martinez-Gomez hadn’t established society’s recognition of her proposed social group. The immigration judge concluded that Martinez-Gomez’s claim for withholding of removal failed for the same reasons as her asylum claim. The immigration judge then rejected her claim under the Convention Against Torture because Martinez-Gomez hadn’t established that she would likely be tortured if removed to Honduras. The board concluded that the immigration judge hadn’t made any clear errors of fact, affirmed the immigration judge’s decision, adopted it as the board’s own, and dismissed Martinez-Gomez’s appeal. The board rejected Martinez-Gomez’s claim that the immigration judge erred in not conducting a full hearing, concluding that the parties’ stipulation to waive her testimony was valid. Martinez-Gomez now petitions for our review of the board’s decision. 5  USCA11 Case: 20-12578 Date Filed: 09/01/2021 Page: 6 of 11 STANDARD OF REVIEW We review the board’s decision as the agency decision, unless the board expressly adopts the immigration judge’s opinion or agrees with its reasoning. Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301 , 1306 (11th Cir. 2019). When the board adopts or agrees with the reasoning of the immigration judge’s decision, we review both decisions. Id. We review de novo a claim that the agency failed to provide reasoned consideration for its decision or committed legal error. Jeune v. U.S. Att’y Gen., 810 F.3d 792 , 799 (11th Cir. 2016); Lapaix v. U.S. Att’y Gen., 605 F.3d 1138 , 1143 (11th Cir. 2010). DISCUSSION Martinez-Gomez argues that: (1) the immigration judge and the board didn’t give reasoned consideration to her asylum claim; and (2) the immigration judge erred by not holding a full hearing on her application. Reasoned Consideration Martinez-Gomez argues that the immigration judge failed to make findings on whether her “alternative proposed particular social group of ‘single mothers head of household’” was a valid social group for asylum purposes. She also faults the immigration judge and the board for not making findings on the country conditions in Honduras. Because of these omissions, Martinez-Gomez argues, the immigration 6  USCA11 Case: 20-12578 Date Filed: 09/01/2021 Page: 7 of 11 judge and board didn’t give reasoned consideration to her asylum claim. We disagree. An agency must give “reasoned consideration” to a petitioner’s claims, Jeune, 810 F.3d at 803, and “consider the issues raised and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted,” Tan v. U.S. Att’y Gen., 446 F.3d 1369 , 1374 (11th Cir. 2006) (citation omitted). The agency is “required to consider all evidence that a petitioner has submitted.” Jeune, 810 F.3d at 803. But it “need not address specifically each claim the petitioner made . . . .” Cole v. U.S. Att’y Gen., 712 F.3d 517 , 534 (11th Cir. 2013) (quotation omitted) ), abrogated on other grounds by Nasrallah v. Barr, 140 S. Ct. 1683 , 1689 (2020). We reject Martinez-Gomez’s argument that the immigration judge failed to give reasoned consideration to her “alternative” claim of a fear of future persecution “on account of being a single mother.” At the hearing, the immigration judge asked Martinez-Gomez’s counsel what social group she was relying on as a basis for asylum. Her counsel responded, “Single mother . . . who has been threatened by the Maras gang because she refused to sell drugs.” To confirm this was “the theory of [her] claim,” the immigration judge asked, “So single mother . . . who has been threatened by the Maras gang because she refused to sell drugs for them,” and counsel confirmed that was the basis for her claim. The immigration judge asked if 7  USCA11 Case: 20-12578 Date Filed: 09/01/2021 Page: 8 of 11 Martinez-Gomez’s asylum claim was based on “[a]nything else.” The answer was “[n]o.” During the asylum hearing, Martinez-Gomez expressly relied on only one particular social group as a basis for asylum—single mothers threatened by the Maras for refusing to sell drugs—and the immigration judge gave reasoned consideration to that one claim. Martinez-Gomez is not entitled to a remand for the immigration judge to consider a claim she did not rely on at the hearing. Martinez-Gomez next argues that the immigration judge and the board didn’t “issue any specific factual findings regarding country conditions evidence.” But the immigration judge wasn’t required to “address specifically each . . . piece of evidence” she presented. See Tan, 446 F.3d at 1374 (quoting Morales v. INS, 208 F.3d 323 , 328 (1st Cir. 2000)). The immigration judge admitted into evidence the articles and reports Martinez-Gomez submitted describing the conditions in Honduras. In its ruling, the immigration judge discussed these documents—which “reflect[ed] the violence and the crime and the activities of the gangs” in Honduras— and expressed sympathy for the problems Martinez-Gomez faced in her home country. Based on the immigration judge’s detailed order of removal, we can perceive “that it has heard and thought and not merely reacted” to Martinez-Gomez’s asylum claim generally and to evidence regarding the conditions in Honduras specifically. See id. at 1374 . 8  USCA11 Case: 20-12578 Date Filed: 09/01/2021 Page: 9 of 11 Finally, Martinez-Gomez argues that the immigration judge’s “failure to address the country conditions evidence” casts doubt on its conclusion that she had not established future persecution. Because of this alleged failure, she argues, the immigration judge failed to “evaluate whether there is a pattern or practice of persecution in Honduras of single mothers.” But, as we explained above, the immigration judge did give reasoned consideration to the country conditions evidence. And, as we explained, “single mothers” in Honduras wasn’t the particular social group that Martinez-Gomez relied on at the removal hearing. The immigration judge considered the evidence and claims that were put before it. Because the immigration judge and the board gave reasoned consideration to Martinez-Gomez’s asylum claim, we must deny this portion of her petition. Whether Martinez-Gomez Received a Full Hearing Martinez-Gomez argues that the immigration judge erred by not holding a full hearing on her asylum claim. She concedes that testimony can be dispensed with “where the parties stipulate to the contents of the asylum application.” But the stipulation here was improper, Martinez-Gomez argues, because it “was not the result of a fair, good faith discussion between the parties,” and because she “was not asked if the application was complete and did not have an opportunity to add any additional detail or elaborate on the circumstances surrounding her experiences.” These arguments cannot be squared with the record. 9  USCA11 Case: 20-12578 Date Filed: 09/01/2021 Page: 10 of 11 The regulations governing asylum claims require that an applicant “take the stand, be placed under oath, and be questioned as to whether the information in the written application is complete and correct.” Matter of Fefe, 20 I. & N. Dec. 116, 118 (BIA 1989); accord 8 C.F.R. § 1240.11(c)(3)(iii) (providing that an applicant “shall be examined under oath on his or her application and may present evidence and witnesses in his or her own behalf”). The hearing and the examination of the applicant shouldn’t “stop at this point unless the parties stipulate that the applicant’s testimony would be entirely consistent with the written materials and that the oral statement would be believably presented.” Fefe, 20 I. & N. Dec. at 118; see also Matter of E-F-H-L-, 26 I. & N. Dec. 319, 322 n.3 (BIA 2014), vacated on other grounds by Matter of E-F-H-L-, 27 I. & N. Dec. 226 (A.G. 2018) (recognizing that, under Fefe, “a full examination of the applicant might not be strictly required” following a stipulation, provided that the applicant “testif[ies] under oath as to the correctness and completeness of the application.”). Here, Martinez-Gomez swore that the contents of her application were “all true and accurate.” The immigration judge asked the parties whether they would stipulate that if Martinez-Gomez testified “fully,” her testimony would be consistent with her application. Martinez-Gomez’s counsel didn’t seek more time to discuss the stipulation with the government. Counsel instead stated twice (without qualification) that he would stipulate. Although the government agreed to stipulate 10  USCA11 Case: 20-12578 Date Filed: 09/01/2021 Page: 11 of 11 provided that the immigration judge ultimately denied Martinez-Gomez’s claim, the immigration judge didn’t adopt this caveat as part of the stipulation. And Martinez- Gomez didn’t object to this statement or withdraw her willingness to stipulate. On these facts, we cannot find that the stipulation the parties voluntarily entered into was improper or invalid. Martinez-Gomez maintains that the stipulation was improper because she swore that her application was accurate but didn’t swear it was complete. But she stipulated that if she were to testify “fully,” her testimony would be consistent with her application. “Fully” is just another way of saying “completely.” And, following Martinez-Gomez’s testimony as to her Convention Against Torture claim, her counsel didn’t try to elicit testimony relevant to her asylum claim; rather, he had “no other questions.” Finally, Martinez-Gomez never proffered what additional facts she would’ve offered had she testified in support of her asylum claim. She therefore can’t establish that the absence of her testimony prejudiced her or otherwise constituted reversible error. See Lapaix, 605 F.3d at 1144 (holding that the applicant “was not denied an opportunity to present her case” where the immigration judge “[a]t no point . . . refuse[d] to hear admissible testimony,” and the applicant failed to “demonstrate that, in the absence of the alleged violations, the outcome of the proceeding would have been different.”). PETITION DENIED. 11

2021-01-26 17:11:11.192586+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/4/2021/2021-Ohio-177.pdf

[Cite as State v. Halfhill, 2021-Ohio-177 .] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT MEIGS COUNTY STATE OF OHIO, : Case No. 20CA7 Plaintiff-Appellee, : v. : DECISION AND JUDGMENT ENTRY AUSTIN R. HALFHILL, : Defendant-Appellant. : RELEASED 1/20/2021 ______________________________________________________________________ APPEARANCES: Michael R. Huff, Athens, Ohio, for appellant. James K. Stanley, Meigs County Prosecutor, Pomeroy, Ohio, for appellee. ______________________________________________________________________ Hess, J. {¶1} Austin R. Halfhill appeals his sentence for aggravated vehicular homicide and operating a vehicle while under the influence of alcohol or drugs (OMVI). Halfhill contends that the trial court erred when it sentenced him under the Reagan Tokes Law because it is unconstitutional. Halfhill argues that the provisions that enable the Ohio Department of Rehabilitation and Corrections (ODRC) to increase his prison sentence without judicial involvement and to future imprison him without notice, a hearing, and a jury trial violates the separation of powers doctrine, his due process rights, and his right to a jury trial. Meigs App. No. 20CA7 2 {¶2} We dismiss his appeal because the question of the constitutionality of the Reagan Tokes Law is not ripe for review. Halfhill was sentenced to an indefinite prison term of a minimum of sixteen years and a maximum of twenty years. Under the Reagan Tokes Law, there is a rebuttable presumption that Halfhill will be released at the end of his minimum sentence. The ODRC may, under certain circumstances, rebut that presumption and keep Halfhill incarcerated for an additional reasonable period, not to exceed his maximum prison term as sentenced by the trial court. However, Halfhill has not yet served his minimum sentence. Therefore, he has not yet been subject to the application of the provisions he challenges. Because he has not yet been subject to the actions by the ODRC, the constitutional issue is not yet ripe for our review. {¶3} We dismiss this appeal. I. FACTS AND PROCEDURAL HISTORY {¶4} The Meigs County grand jury indicted Halfhill on nine counts, including three OMVI counts, first-degree misdemeanors; two counts of aggravated vehicular homicide, first-degree felonies; two counts of aggravated vehicular homicide, second- degree felonies; and two counts of vehicular manslaughter, first-degree misdemeanors. The charges arose from an accident in which Halfhill struck a motorcycle, killing both riders. In a negotiated plea agreement, Halfhill pleaded guilty to two counts of aggravated vehicular homicide in violation of R.C. 2903.06(A)(1)(a), first-degree felonies, and one count of OMVI in violation of R.C. 4511.19(A)(1)(a), a first-degree misdemeanor. Pursuant to the plea agreement, the trial court dismissed the remaining counts. The parties did not reach an agreement as to sentencing. Meigs App. No. 20CA7 3 {¶5} At the sentencing hearing, Halfhill filed a sentencing memorandum in which he asked the trial court to strike as unconstitutional the indefinite sentencing provisions of the recently enacted Reagan Tokes Law, Am.Sub.S.B. No 201, effective March 22, 2019. The trial court rejected his argument and found Reagan Tokes Law constitutional and sentenced Halfhill to an indefinite term of eight years minimum to twelve years maximum on one of the aggravated vehicular homicide counts, eight years on the other aggravated vehicular homicide count, and 180 days of local jail time for OMVI. The trial court ordered the aggravated vehicular homicide sentences to run consecutive to one another and concurrent with the OMVI sentence for an aggregate prison term of sixteen to twenty years. II. ASSIGNMENT OF ERROR {¶6} Halfhill assigns the following error for our review: AS AMENDED BY THE REAGAN TOKES ACT (SB 201, EFF. 3/22/19), THE REVISED CODE’S SENTENCES FOR FIRST AND SECOND DEGREE QUALIFYING FELONIES VIOLATE THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF OHIO. {¶7} Halfhill contends that the Reagan Tokes Law violates the separation of powers doctrine, due process, and his right to a jury trial. III. REAGAN TOKES LAW {¶8} The Reagan Tokes Law requires that a court imposing a prison term under R.C. 2929.14(A)(1)(a) or (2)(a) for a first or second-degree felony committed on or after March 22, 2019, impose a minimum prison term under that provision and a maximum prison term determined under R.C. 2929.144(B). R.C. 2929.144(C). There is a presumption that the offender “shall be released from service of the sentence on the expiration of the offender’s minimum prison term or on the offender’s presumptive Meigs App. No. 20CA7 4 earned early release date, whichever is earlier.” R.C. 2967.271(B). A presumptive earned early release date is a date determined under procedures described in R.C. 2967.271(F) which allow the sentencing court to reduce the minimum prison term under certain circumstances. R.C. 2967.271(A)(2). The ODRC may rebut the presumption if it determines at a hearing that one or more statutorily numerated factors applies. R.C. 2967.271(C). If ODRC rebuts the presumption, it may maintain the offender’s incarceration after the expiration of the minimum prison term or presumptive earned early release date for a reasonable period of time, determined and specified by ODRC, that “shall not exceed the offender’s maximum prison term.” R.C. 2967.271(D)(1). {¶9} Halfhill maintains that the Reagan Tokes Law violates the separation of powers doctrine, due process and his right to a jury trial because R.C. 2967.271(C)(1) allows ODRC to extend a prison sentence if it determines, among other things, that the offender committed an unprosecuted violation of the law. He asserts that when the Reagan Tokes Law is compared to former R.C. 2967.11 (the “bad time” law), which allowed the parole board to extend an offender’s stated prison term under certain circumstances, “the net results are indistinguishable.” Halfhill argues that in State ex rel. Bray v. Russell, 89 Ohio St.3d 132 , 729 N.E.2d 359 (2000), the Supreme Court of Ohio held that former R.C. 2967.11 violated the separation of powers doctrine because trying, convicting, and sentencing inmates for crimes committed while incarcerated is not an exercise of executive power. He also argues that due process requires that the decision to restrict an individual’s freedom be made by a judge and that he has a right to a trial by jury on the question of whether his minimum sentence should be increased. Meigs App. No. 20CA7 5 {¶10} The state contends both that Halfhill lacks standing1 to challenge the constitutionality of the Reagan Tokes Law and that his constitutional challenge is not ripe for review because he has not been injured by its allegedly unconstitutional provision as ODRC has not maintained his incarceration beyond his minimum prison term. Alternatively, the state argues that the law is constitutional and cites a number of Second and Twelfth District decisions that have found the Reagan Tokes Law to be constitutional. {¶11} The constitutionality of a statute presents a question of law we review de novo. Hayslip v. Hanshaw, 2016-Ohio-3339 , 54 N.E.3d 1272 , ¶ 27 (4th Dist.). However, “[i]t is well settled that this court will not reach constitutional issues unless absolutely necessary.” State v. Talty, 103 Ohio St.3d 177 , 2004-Ohio-4888 , 814 N.E.2d 1201 , ¶ 9. To determine the necessity of a constitutional analysis, therefore, we must first decide whether the issue is ripe for review. {¶12} At least eight appellate districts have had the opportunity to address the constitutionality of the Reagan Tokes Law. In our district and in the Eighth and Eleventh District Courts of Appeals, when the defendant fails to raise constitutional objections in the trial court, the appellate courts refuse to conduct a plain error analysis of the issue. State v. Conant, 4th Dist. Adams No. 20CA1108, 2020-Ohio-4319 , ¶ 40 (“we decline to 1 As Halfhill correctly argues in his reply brief, although the state contends Halfhill lacks “standing” the proper question is one of “ripeness” rather than “standing.” See Wells Fargo Bank, N.A. v. Horn, 142 Ohio St.3d 416 , 2015-Ohio-1484 , 31 N.E.3d 637 , ¶ 8 (2015) (“Generally speaking, standing is ‘[a] party's right to make a legal claim or seek judicial enforcement of a duty or right.’ Black's Law Dictionary 1625 (10th Ed.2014). ‘It is an elementary concept of law that a party lacks standing to invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the subject matter of the action.’”). “Ripeness ‘is peculiarly a question of timing.’” State ex rel. Elyria Foundry Co. v. Indus. Comm., 82 Ohio St.3d 88 , 89, 1998-Ohio-366 , 694 N.E.2d 459 . Thus, while Halfhill undoubtedly has standing to challenge his sentence, because he has not yet been subject to the ODRC actions, the question is whether the constitutionality of Reagan Tokes Law is ripe for review. Meigs App. No. 20CA7 6 construct a plain error argument on his behalf, particularly when R.C. 2967.271(C)(1) has not been and might never be applied to him, and he has not responded to the state’s standing argument”); State v. Young, 8th Dist. Cuyahoga No. 108868, 2020- Ohio-4135, ¶ 21 (“Young failed to raise a constitutional challenge to the Reagan Tokes Act in the trial court, and we decline to address the issue for the first time on appeal”); State v. Dames, 8th Dist. Cuyahoga No. 109090, 2020-Ohio-4991 , ¶ 12, 19 (“Given the lack of presentment to the trial court and the absence of plain error arguments, we decline to address the constitutionality of the Reagan Tokes Act as to this case”); State v. Hollis, 8th Dist. Cuyahoga No. 109092, 2020-Ohio-5258 , ¶ 47-57 (declining to address constitutionality of Reagan Tokes Act for the first time on appeal); State v. Ferguson, 11th Dist. Lake No. 2020-L-0431, 2020-Ohio-5578 , ¶ 13 (defendant failed to raise it at the trial level, appellate court declined to address it). {¶13} Recently, when the issue was properly preserved for appeal, we held that a defendant’s constitutional challenge to the Reagan Tokes Law was not ripe for review. State v. Ramey, 4th Dist. Washington Nos. 20CA1, 20CA2, 2020-Ohio-6733 . In Ramey, the defendant raised the same constitutional challenges to the Reagan Tokes Law as Halfhill raises. We analyzed decisions from other appellate districts and found that some districts held that the constitutionality of Reagan Tokes Law was not ripe for review and other districts reviewed the statute and found it constitutional. Ramey at ¶ 20. The Fifth District Court of Appeals has held that constitutional challenges to the Reagan Tokes Law are not yet ripe for review because the appellant has not yet been subject to the application of those provisions. It determined that the appropriate method to challenge the constitutionality of the Reagan Tokes Law is by filing a petition for a writ of habeas Meigs App. No. 20CA7 7 corpus if the defendant is not released at the conclusion of the minimum term of incarceration. State v. Downard, 5th Dist. Muskingum No. CT2019-0079, 2020-Ohio- 4227, ¶ 7-12; State v. Manion, 5th Dist. Tuscarawas No. 2020AP030009, 2020-Ohio- 4230, ¶ 7-12; State v. Kibler, 5th Dist. Muskingum No. CT2020-0026, 2020-Ohio-4631 , ¶ 13-16; but see State v. Cochran, 5th Dist. Licking No. 2019CA122, 2020-Ohio-5329 , ¶ 25-63 and State v. Wolfe, 5th Dist. Licking No. 2020CA21, 2020-Ohio-3501 , ¶ 41-81 (Gwin, J., dissenting in both Cochran and Wolfe and finding the question of the constitutionality of Reagan Tokes Law ripe for review and finding the law constitutional). {¶14} The Fifth District determined that the issue was not ripe for review because the appellant “has not yet been subject to the application of these provisions, as he has not yet served his minimum term, and therefore has not been denied release at the expiration of his minimum term of incarceration.” Downard at ¶ 7; Manion at ¶ 7. In discussing the ripeness issue, the appellate court explained: The Ohio Supreme Court discussed the concept of ripeness for review in State ex rel. Elyria Foundry Co. v. Indus. Comm., 82 Ohio St.3d 88 , 1998-Ohio-366 , 694 N.E.2d 459 : Ripeness “is peculiarly a question of timing.” Regional Rail Reorganization Act Cases (1974), 419 U.S. 102 , 140, 95 S.Ct. 335 , 357, 42 L.Ed.2d 320 , 351. The ripeness doctrine is motivated in part by the desire “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies * * *.” Abbott Laboratories v. Gardner (1967), 387 U.S. 136 , 148, 87 S.Ct. 1507 , 1515, 18 L.Ed.2d 681 , 691. As one writer has observed: “The basic principle of ripeness may be derived from the conclusion that ‘judicial machinery should be conserved for problems which are real or present and imminent, not squandered on problems which are abstract or hypothetical or remote.’ * * * [T]he prerequisite of ripeness is a limitation on jurisdiction that is nevertheless basically optimistic as regards the prospects of a day in court: the time for judicial relief is simply not yet arrived, even though the alleged action Meigs App. No. 20CA7 8 of the defendant foretells legal injury to the plaintiff.” Comment, Mootness and Ripeness: The Postman Always Rings Twice (1965), 65 Colum. L.Rev. 867, 876. Id. at 89, 694 N.E.2d at 460. Downard at ¶ 8-9; Manion at ¶ 8-9. {¶15} The Fifth District Court of Appeals also noted that, in analyzing an analogous constitutional challenge to R.C. 2967.28 (which allows the Parole Board to impose sanctions for violations of post-release control), the Eighth District Court of Appeals concluded that because the defendant “was not currently the subject of such action by the Parole Board, the issue was not yet ripe for review.” Id. at ¶ 10, citing State v. McCann, 8th Dist. Cuyahoga No. 85657, 2006-Ohio-171 , ¶ 6. The appellate court in Downard and Manion analogized the appellant before them to the appellant in McCann and found: Likewise, in the instant case, while R.C. 2967.271 allows the DRC to rebut the presumption Appellant will be released after serving his eight year minimum sentence and potentially continue his incarceration to a term not exceeding ten and one-half years, Appellant has not yet been subject to such action by the DRC, and thus the constitutional issue is not yet ripe for our review. Downard at ¶ 11; Manion at ¶ 11. {¶16} While Ramey’s appeal was pending in our court, the Sixth District Court of Appeals issued a series of decisions adopting the Fifth District’s analysis in Downard and finding that the constitutionality of Reagan Tokes Law was not ripe for review. See State v. Maddox, 6th Dist. Lucas No. CL-19-1253, 2020-Ohio-4702 , ¶ 7 -14; State v. Velliquette, 2020-Ohio-4855 , __N.E.3d__, ¶ 29 (6th Dist.); State v. Montgomery, 6th Dist. Lucas No. L-19-1202, 2020-Ohio-5552 , ¶ 25. In both Velliquette and Montgomery, the Sixth District recognized that its decision was in conflict with decisions in the Second Meigs App. No. 20CA7 9 and Twelfth District Courts of Appeals, which found the Reagan Tokes Law constitutional without addressing the ripeness issue. The Sixth District Court of Appeals certified the conflict to the Supreme Court of Ohio for review. Velliquette at ¶ 32. We therefore sua sponte certify a conflict to the Supreme Court of Ohio, pursuant to Article IV, Section 3(B)(4), Ohio Constitution. As this case concerns the same conflict at issue in Maddox, we certify the same question for review: Is the constitutionality of the provisions of the Reagan Tokes Act, which allow the Department of Rehabilitation and Corrections to administratively extend a criminal defendant's prison term beyond the presumptive minimum term, ripe for review on direct appeal from sentencing, or only after the defendant has served the minimum term and been subject to extension by application of the Act? Montgomery at ¶ 25. The Velliquette matter is currently pending in the Supreme Court of Ohio, Case No. 2020-1243. {¶17} Although the Fourth, Fifth, Sixth, Eighth, and Eleventh District Courts of Appeals have either refused to conduct a plain error analysis of the constitutional challenge or found the issue not yet ripe for review, the Second, Third, and Twelfth District Courts of Appeals have upheld the Reagan Tokes Law as constitutional without addressing the ripeness issue. State v. Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153 (specifically discussing the State v. Oneal, infra decision from the Hamilton County Court of Common Pleas); State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150 (conducting a plain error review of the constitutionality of the Reagan Tokes Law and rejecting the reasoning in State v. Oneal, Hamilton C.P. No. B 1903562, 2019 WL 7670061 (Nov. 20, 2019), the only known case finding the Reagan Tokes Law unconstitutional); State v. Leet, 2d Montgomery No. 28670, 2020-Ohio- 4592; State v. Sinkhorn, 2d Dist. Clark No. 2019-CA-79, 2020-Ohio-5359 , ¶ 29, 32 Meigs App. No. 20CA7 10 (court acknowledged the state’s ripeness challenge but found “we need not address these arguments because we recently upheld the constitutionality of the Reagan Tokes Act” in Ferguson, supra); State v. Hacker, 2020-Ohio-5048 , __N.E.3d__ (3d Dist.) (conducting a de novo review of the constitutionality of the Reagan Tokes Law and rejecting the reasoning in State v. Oneal); State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837 ; State v. Morris, 12th Dist. Butler No. CA2019-12-205, 2020-Ohio-4103 , ¶ 10. These courts noted critical distinctions between the “bad time” statute and the Reagan Tokes Law. See Ramey, 2020-Ohio-6733 , ¶ 19 (discussing Barnes, Ferguson, and Guyton). {¶18} In Ramey, although we found the analyses of the Second, Third, and Twelfth District Courts of Appeals persuasive, we did not reach the merits of Ramey’s constitutional challenge because, like the analysis of the Fifth District Court of Appeals, we found that it was not yet ripe for review: Ramey has not yet been subject to the application of the provisions, has not served his minimum time, and therefore has not been denied release at the expiration of his minimum term of incarceration. We have historically practiced restraint in addressing challenges to sentencing issues which are not yet ripe for review. See State v. Edwards, 4th Dist. Jackson No. 06CA5, 2006-Ohio-6288 , ¶ 27; State v. Sparks, 4th Dist. Washington No. 03CA21, 2003-Ohio-6300 , ¶ 1 (“Sparks contends that the trial court violated his right to due process and usurped the authority of the Ohio Adult Parole Authority * * * by sentencing him to a period of post-release control. Because we find that Sparks has not yet been sentenced to any period of post release control, we find that his appeal is not yet ripe for judicial review.”). This is particularly true where constitutional challenges are raised; appellate courts will not reach constitutional issues unless “absolutely necessary.” State v. Breidenbach, 4th Dist. Athens No. 10CA10, 2010-Ohio-4335 , ¶ 12. If the provisions of the Reagan Tokes Law which give the ODRC authority to keep Ramey incarcerated until he has served his maximum prison term are unconstitutional, Ramey can challenge those by a petition for a writ of habeas corpus – if, after he has served his minimum prison term, the ODRC acts to maintain him beyond it. See Bray, supra; Downard, supra; Minion, supra. Meigs App. No. 20CA7 11 Id. at ¶ 20. {¶19} As discussed in Ramey, a petition for a writ of habeas corpus was the procedure by which the defendants in Bray, infra, and Woods, infra, challenged the constitutionality of the “bad time” statute, R.C. 2967.11, and the post-release control statute, R.C. 2967.28. Ramey at ¶ 21 (discussing State ex rel. Bray v. Russell, 89 Ohio St.3d 132 , 729 N.E.2d 359 (2000), in which the Supreme Court of Ohio determined that the “bad time” statute violated the separation of powers doctrine and was unconstitutional and discussing Woods v. Telb, 89 Ohio St.3d 504 , 2000-Ohio-171 , 733 N.E.2d 1103 , in which an inmate filed a petition for a writ of habeas corpus arguing that the post-release control statute, R.C. 2967.28, was unconstitutional as it violated the separation of powers doctrine and due process). Thus, like Ramey, we find that a habeas corpus petition is the appropriate method for Halfhill to challenge the constitutionality of the Reagan Tokes Law when – if ever – the ODRC holds him beyond the minimum sentence. {¶20} We find the constitutional challenge raised by Halfhill in his sole assignment of error is not yet ripe for review. The assignment of error is overruled. IV. CONCLUSION {¶21} We overrule the assignment of error. The appeal is dismissed. {¶22} The clerk shall serve a copy of this order on all counsel of record at their last known addresses by ordinary mail. APPEAL DISMISSED. Meigs App. No. 20CA7 12 JUDGMENT ENTRY It is ordered that the APPEAL IS DISMISSED and that Appellant shall pay the costs. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Meigs County Common Pleas Court to carry this judgment into execution. IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty-day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Abele, J. & Wilkin, J.: Concur in Judgment and Opinion. For the Court BY: ________________________ Michael D. Hess, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.

2021-01-26 17:11:11.603187+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/4/2021/2021-Ohio-178.pdf

[Cite as State v. Brickles, 2021-Ohio-178 .] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY STATE OF OHIO, : Plaintiff-Appellee, : Case No. 19CA16 vs. : JIMMY BRICKLES, : DECISION AND JUDGMENT ENTRY Defendant-Appellant. : _________________________________________________________________ APPEARANCES: Evan N. Wagner, Columbus, Ohio, for appellant.1 Judy C. Wolford, Pickaway County Prosecuting Attorney, and Jayme H. Fountain, Assistant Prosecuting Attorney, Circleville, Ohio, for appellee. CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 1-20-21 ABELE, J. {¶ 1} This is an appeal from a Pickaway County Common Pleas Court judgment of conviction and sentence. Jimmy Brickles, defendant below and appellant herein, pleaded guilty to (1) one count of operating a motor vehicle while under the influence of alcohol or a drug of abuse, and (2) one count of failure to comply with the order or signal of a police officer. {¶ 2} Appellant assigns one error for review: ASSIGNMENT OF ERROR: “THE TRAIL [SIC] COURT ERRED IN FAILING TO MAKE THE 1 Different counsel represented appellant during the trial court proceedings. PICKAWAY, 19CA16 2 REQUIRED FINDINGS UNDER R.C. 2929.14(C)(4) AT BRICKLES’ SENTENCING HEARING PRIOR TO IMPOSING CONSECUTIVE SENTENCES OF IMPRISONMENT.” {¶ 3} On September 7, 2018, a Pickaway County Grand Jury returned an indictment that charged appellant with (1) one count of operating a motor vehicle while under the influence of alcohol or a drug of abuse in violation of R.C. 4511.19(A)(1)(j)(iii), a fourth-degree felony, (2) one count of operating a motor vehicle while under the influence of alcohol or a drug of abuse in violation of R.C. 4511.19(A)(1)(j)(viii)(II), a fourth-degree felony, and (3) one count of failure to comply with the order or signal of a police officer in violation of R.C. 2921.331(B), a third degree felony. {¶ 4} Pursuant to the parties’ agreement, appellant pleaded guilty to counts one (operating a motor vehicle under the influence) and three (failure to comply), and the trial court dismissed count two.2 The court accepted appellant’s plea and imposed (1) a thirty-month-prison sentence for the OVI (with a mandatory sixty days served), and (2) a thirty-six-month prison sentence on the failure to comply. The court further ordered the sentences to be served “consecutive to one another and consecutive to the case imposed by the Clark County Court of Common Pleas, Clark County, Ohio.” This appeal followed. {¶ 5} In his sole assignment of error, appellant asserts that, during the sentencing hearing, the trial court did not make all the findings necessary to impose consecutive sentences. In particular, appellant contends that a court must make all the R.C. 2929.14(C) findings at the sentencing hearing before it may impose consecutive terms of imprisonment. {¶ 6} In general, appellate courts review felony sentences under the standard set forth in R.C. 2 At first glance it may appear that the parties’ agreed sentence recommendation should preclude any appeal regarding appellant’s sentence. R.C. 2953.08(D)(1). However, the trial court’s sentence did not fully adopt the parties’ recommendations and neither party asserts that the statute should apply to preclude an appeal. PICKAWAY, 19CA16 3 2953.08(G)(2). State v. Blanton, 4th Dist. Adams No. 16CA1031, 2018-Ohio-1275 , ¶ 97; State v. Bever, 4th Dist. Washington No. 13CA21, 2014-Ohio-600 , ¶ 13. Pursuant to R.C. 2953.08(G)(2), an appellate court may “review the record, including the findings underlying the sentence,” and modify or vacate the sentence if the court “clearly and convincingly” finds either that “the record does not support the sentencing court’s findings under division * * * (C)(4) of section 2929.14 * * * of the Revised Code * * * [or] (b) [t]hat the sentence is otherwise contrary to law.” R.C. 2953.08(G)(2). This means that an appellate court must clearly and convincingly determine that the record does not support a trial court’s findings, which is an extremely deferential standard of review. Blanton at ¶ 99; State v. Tackett, 4th Dist. Meigs No. 18CA22, 18CA23, 2019-Ohio-4960 , ¶ 6. R.C. 2953.08 provides for appeals based on felony sentencing guidelines. Pursuant to R.C. 2953.08(G)(2), an appellate court may increase, reduce, modify, or vacate and remand a challenged felony sentence if the court clearly and convincingly finds either “that the record does not support the sentencing court’s findings,” under the specified statutory provisions, or “the sentence is otherwise contrary to law.” State v. Mitchell, 4th Dist. Meigs No. 13CA13, 2015-Ohio-1132 , ¶ 11; State v. Brewer, 2014-Ohio-1903 , 11 N.E.3d 317 , ¶ 37 (4th Dist.). “[C]lear and convincing evidence is that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469 , 120 N.E.2d 118 (1954), paragraph three of the syllabus. Thus, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds, by clear and convincing evidence, that the record does not support the sentence. State v. Walker, 4th Dist. Gallia No. 19CA1, PICKAWAY, 19CA16 4 2020-Ohio-617 , ¶ 19. {¶ 7} Turning to the merits of appellant’s argument, “in order to impose consecutive terms of imprisonment, a trial court is required to make findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry, but it has no obligation to state reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209 , 2014-Ohio-3177 , 16 N.E.3d 659 , ¶ 29. A failure to make the appropriate R.C. 2929.14(C)(4) findings renders a consecutive sentence contrary to law. State v. Bever, supra, at ¶ 17 ; State v. Stamper, 12th Dist. Butler No. CA2012-08-166, 2013-Ohio-5669 , ¶ 23. In particular, a sentencing court must find, pursuant to R.C. 2929.14(C)(4), that (1) “the consecutive sentence is necessary to protect the public from future crime or to punish the offender,”; (2) “the consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public”; and (3) one of the following: (a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 292917, or 2929.18 of the Revised Code, or was under post-release control for a prior offense. (b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct. (c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. {¶ 8} In the case sub judice, appellant argues that the trial court failed to find that consecutive sentences are necessary to protect the public from future crime or to punish the offender, and not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to PICKAWAY, 19CA16 5 the public. Appellant points out that after the court addressed consecutive sentences for the failure to comply and the OVI, the court turned to the issue of appellant’s current Clark County sentence: I guess I have to make the Bonnell findings with respect to running this consecutive to his current sentence he’s serving now. He was under a sanction pursuant to section 2929.16, 2929.17, or 2929.18, or is under sanction for control. The court finds that at least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused was so great or unusual that no single prison term for any of the offenses committed as part of the courses of conduct adequately reflects the seriousness of defendant’s conduct. And lastly, his history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime from Mr. Brickles. It will be the order of the court the sentences therefore be ordered consecutive to any sentence he’s currently serving. The entry also states that the sentences in this case must “be served consecutive to one another and consecutive to the case imposed by the Clark County Court of Common Pleas, Clark County, Ohio.” In so finding, the court stated: The Court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and the offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to Section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense and at least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct. The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. {¶ 9} Our review in the case at bar reveals that the trial court’s sentencing entry appears to satisfy the R.C. 2929.14(C)(4) requirements. However, it also appears that the trial court’s oral PICKAWAY, 19CA16 6 pronouncement at the sentencing hearing may not have satisfied the pertinent requirements. Here, the trial court found all three R.C. 2929.14(C)(4)(a)-(c) factors to be present, even though the court need find only one factor. However, it appears that the trial court did not make either of the requisite findings under R.C. 2929.14(C)(4). Additionally, even if we assume, arguendo, that the court’s statements regarding the protection of the public satisfies the R.C. 2929.14(C)(4) mandate, the trial court did not find that “consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public.” In State v. Tackett, supra, 4th Dist. Meigs No. 18CA22, 18CA23, 2019-Ohio-4960 , we held that a court’s failure to find that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender posed to the public did not satisfy the R.C. 2929.14 finding regarding the imposition of consecutive sentences, even though the court did make a statement that included the word “proportionate” under its general consideration of the overriding principles and purposes of felony sentencing as required by R.C. 2929.11, 2929.12, and 2929.13. The trial court in Tackett stated: The Court is also ensuring that sentence is not based on impermissible purposes, and is consistent with other similar offenses committed by like offenders, is proportionate harm caused the impact upon any victim. [sic.] Tackett at ¶ 8. {¶ 10} Therefore, in the case sub judice it appears that the trial court did not adequately address the proportionality issue. While we recognize that a high degree of overlap exists between R.C. 2929.14(C) and R.C. 2929.14(C)(4)(b), the court apparently did not conduct the necessary proportionality analysis and make the required finding. {¶ 11} Consequently, because we do not believe the trial court made all of the necessary PICKAWAY, 19CA16 7 findings on the record at the sentencing hearing to impose consecutive sentences, the trial court did not comply with R.C. 2929.14(C) and Bonnell’s requirement that a court is “required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry * * *.” Bonnell, supra, at ¶ 37. Accordingly, based upon the foregoing reasons, we conclude that the trial court did not adequately comply with R.C. 2929.14(C) and, at this juncture, the imposition of consecutive sentences is contrary to law. Therefore, we sustain appellant’s sole assignment of error, vacate the sentences and remand the matter to the trial court for re-sentencing. We hasten to add, however, that our decision should not be construed as a comment on the propriety of consecutive sentences. On remand, the trial court may choose to impose any sentence it deems appropriate under the pertinent statutory provisions. {¶ 12} Furthermore, we also express our sympathy to trial courts for their unenviable task of attempting to navigate Ohio’s complex and convoluted web of felony sentencing statutes and issues. Prior to 1996, Ohio felony sentences involved simple, straight-forward statutes that the bench, bar, and most importantly, the general public could easily understand. Since that time, Ohio’s sentencing scheme has failed to promote judicial economy and diminishes the general public’s understanding of the criminal justice system. All laws should be clear, precise and uniform. Unfortunately, Ohio’s felony sentencing scheme falls short of that goal. JUDGMENT REVERSED AND CAUSE REMANDED FOR RE-SENTENCING CONSISTENT WITH THIS OPINION. PICKAWAY, 19CA16 8 JUDGMENT ENTRY It is ordered that the judgment be reversed and cause remanded for re-sentencing consistent with this opinion. Appellant recover of appellee the costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court to carry this judgment into execution. If a stay of execution of sentence and release upon bail has been previously granted by the trial court or this court, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Smith, P.J. & *Myers, J.: Concur in Judgment & Opinion For the Court BY: Peter B. Abele, Judge *Judge Beth A. Myers, First District Court of Appeals, sitting by assignment of the Ohio Supreme Court in the Fourth Appellate District. PICKAWAY, 19CA16 9 NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.

2020-12-01 12:13:39.678289+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=19307&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa04%5cOpinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-19-00832-CV Maryvel SUDAY, Independent Executor of the Estate of Olga Tamez de Suday, Deceased Appellant v. Jesus Lozano SUDAY, Appellee From the County Court at Law, Val Verde County, Texas Trial Court No. 3,625 CCL Honorable Stephen B. Ables, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Luz Elena D. Chapa, Justice Beth Watkins, Justice Delivered and Filed: November 25, 2020 AFFIRMED This is an appeal from a final decree of divorce incorporating a Rule 11 1 agreement regarding the property division between appellant Olga Tamez de Suday (“Olga”) 2 and appellee Jesus Lozano Suday (“Jesus”). Olga raises four issues challenging the circumstances under which the Rule 11 agreement was reached. We affirm. 1 TEX. R. CIV. P. 11. 2 Olga Tamez de Suday died after the divorce and this appeal is being prosecuted by Maryvel Suday as independent executor of her estate. For simplicity, we will nevertheless refer to Olga as the appellant.  04-19-00832-CV BACKGROUND Olga and Jesus were married in 1966. Olga filed for divorce in Texas in 2017. Jesus filed for divorce in Mexico and also filed a counterpetition for divorce in the Texas action. Olga was represented at various times during the Texas divorce proceedings by a number of different attorneys. At the time of the final hearing in 2019, she had discharged her most recent attorney and appeared pro se. When the parties appeared for trial on the merits, there initially was a discussion among Olga (assisted by an interpreter), counsel for Jesus (Rogelio Munoz, Jr.), and the trial court. During this discussion, the court inquired about the status of the Mexican divorce proceedings. Munoz informed the court that the Mexican court had entered a decree of divorce but had not yet ordered a property division. Munoz tendered to the court, and to Olga, a copy of the Mexican decree and a document translating that decree into English. The trial court noted its understanding that either it or the Mexican court could grant the divorce and, whichever one did so first, the other need not do so again. The court then stated, “They are divorced. We need to do a property division here.” Munoz then explained that the parties’ assets in the United States consisted of cash in the form of various CDs, a residence, and a couple of vehicles. He noted that the couple also owned real property in Mexico. Olga indicated that she believed there was more money than Jesus was accounting for, an assertion Jesus denied. At this point in the discussion, the court swore in the interpreter, realizing that it had not done so at the start of the hearing. The interpreter at times related what Olga was saying as verbatim translation, but at other times paraphrased what she was saying in a more summary fashion. For example, the interpreter would say, “She wants to state that . . . ,” or “She only asks from you . . . ,” rather than simply stating Olga’s answer in English in the first person, as if Olga herself were speaking. -2-  04-19-00832-CV The trial court informed Olga that it could not divide the couple’s property in Mexico and urged her to retain an attorney to represent her in the Mexican proceedings. The court then told Olga, “So we can take care of this United States divorce if we can have an agreement between you and your husband of what percentage of the cash you’ll get and what percentage of the house you’ll get and that will be behind us.” The court then granted a brief recess so that Munoz, Olga, and Olga’s son could discuss a potential settlement. Following the recess, Munoz informed the court that they were close to a settlement, that Olga wanted to return in two or three weeks to conclude the matter, but that Munoz believed it could be concluded that day rather than dragging it out. The court again recessed and the parties continued to confer. When court reconvened, Munoz announced that the parties had not yet reached a settlement but that they were very close. He described his client’s offer and urged the court to resolve the matter that day. Olga, on the other hand, requested that she be given more time so that she could get an attorney’s advice. She also raised an issue concerning a life insurance policy held by Jesus. After further discussion, an offer was made concerning the policy that Olga found acceptable. The court then addressed Olga again: So they’ve offered to let you have the house for as long as you want to live there and they’ve offered you some cash and they’ve offered to keep you on the million and a half dollar insurance policy. But the problem is if you don’t take that today, that he doesn’t have to offer it to you tomorrow. And I want to give you the opportunity if you want to go ahead and try to settle this today, you can do that. If you don’t want to and we continue this case, they may withdraw the offer. . . . If you don’t take the offer, and you don’t have to, but they can withdraw the offer when they walk out of this courtroom. The interpreter and Olga’s son then both explained the matter to her in Spanish. Further discussion ensued concerning the condition of the residence and the need for some repairs, during which the court stated, -3-  04-19-00832-CV Okay. Stop. I don’t want you [Olga] to feel that you have been forced into anything. If I have to make the decision about how to divide this, it may not be what you want and it may not be what he [Jesus] wants. And if we go today and we continue this case and I have you come back, it would have to be the last time. There would— I’ve given you some continuances. And if I continue it, I cannot continue it again. I’ve given you too many times to come back. So do you want to accept this offer or do you want to reject it? The court informed both parties that, if the matter were not settled that day, it would be reset to a later date, at which time the court would divide the property. It noted, “what has been articulated to me sounds like some fair dealing; but if you-all can’t reach a fair deal, I’m going to divide the property.” The court then reiterated that it would reset the matter if no agreement was reached that day. In addition, it noted that Olga was responsible for the case being drawn out and additional attorney’s fees being incurred, and that it would take that into consideration if it were called upon to make the property division. Olga’s son then conferred with her again, after which she said she would accept the settlement offer on the condition that Jesus fix the house. But she then raised an issue of “spousal maintenance” and further discussion followed. The court recessed the proceedings once more, stating, “if you want to try to put together a Rule 11 agreement for everybody to sign, you-all can do that.” When the parties again returned to the courtroom, Munoz announced that they had reached an agreement. Jesus was sworn in and affirmed that he had agreed to, and signed, the Rule 11 agreement. Olga was also sworn in and affirmed that the interpreter had translated the agreement into Spanish for her, she understood it, and she was in full agreement with it. Munoz then read the agreement out loud to ensure that Olga understood it. Olga responded “Yes” to each of the agreement’s provisions except the manner in which certain CDs were divided. At that point, she told the court that she did not agree with that provision and requested that the court decide how to split those assets. The court explained that the property would either be divided by agreement or -4-  04-19-00832-CV by the court, but not both: “If you-all reach an agreement today, I’ll approve it. If you don’t reach an agreement, I’ll make the entire 100 percent decision on the property.” Olga responded that she was not very happy with the negotiated settlement, but that she accepted it. Olga again affirmed that, before she signed the agreement, she had reviewed it in a language she understood. When asked whether she signed the agreement because she agreed with its terms, she responded that she was not very convinced, but she did sign it. At this point, a new issue relating to the life insurance policy was raised. A proposed solution was offered, to which Olga agreed. While Munoz was inserting the additional language into the Rule 11 agreement, the trial court questioned Olga concerning her understanding of, and agreement with, the settlement. In answer to the court’s inquiries, Olga affirmed once more that she understood the agreement, entered it freely and voluntarily, and understood that the court could not later change it. The court ultimately approved the Rule 11 agreement. Between the time the court approved the agreement and the time it signed the final decree of divorce, Olga retained an attorney who filed a verified “Motion for New Final Hearing and/or Motion for New Trial” on her behalf. The motion asserts that the property division was an abuse of discretion, and that Olga did not sign the Rule 11 agreement freely, voluntarily, knowingly, and intelligently because she was not adequately assisted by the interpreter and was not represented by counsel. In contesting the property division, the motion identifies some shares of stock and several pieces of real property in Mexico, and asserts that all of those properties were awarded to Jesus by the Mexican court. The motion also alleges that Jesus committed fraud by hiding certain community assets. Jesus filed a verified response to Olga’s motion, which was supported by affidavits from Olga’s son and the interpreter. The son states that he attended the off-the-record settlement negotiations, all of those negotiations were conducted in Spanish, Olga took an active part in the -5-  04-19-00832-CV negotiations, the interpreter accurately translated each paragraph of the Rule 11 agreement into Spanish as it was written down, and Olga fully understood the agreement. The interpreter states that he is fluent in English and Spanish “at a high level” and has been engaged as an interpreter by the Mexican and Guatemalan consulates. He, too, states that all of the negotiations were conducted in Spanish, Olga took an active part in the negotiations, and he accurately translated each paragraph into Spanish as it was written down. The court’s docket sheet reflects that Olga’s motion was set for hearing on August 26, 2019. Our record does not contain any reporter’s record from that hearing, nor does it contain any order on the motion. The only activity reflected on that date is that the trial court signed a final decree of divorce incorporating the terms of the Rule 11 agreement. Olga filed an amended motion for new trial, repeating the grounds raised in the previous motion and adding a list of “unresolved and pending issues.” Olga also asserts in the amended motion that the Texas court has dominant jurisdiction and, as a result, the Mexican divorce is not valid and the Texas court should have divided all of the parties’ property in Mexico. Jesus again responded with the same affidavits from Olga’s son and the interpreter. The record does not show that the amended motion for new trial was ever set for hearing. As a consequence, it was overruled by operation of law. This appeal followed. ISSUES In four issues on appeal, Olga asserts that the trial court erred by failing to appoint a qualified interpreter to assist her, by accepting Munoz’s assertions that a Mexican court had properly exercised jurisdiction over her and that the Texas court lacked authority to divide property in Mexico, and by erroneously advising Olga that the court could not proceed with the divorce or divide property in Mexico. Although not listed as a discrete issue, Olga also contends that the trial court improperly interjected itself into the settlement negotiations as an advocate for Jesus. -6-  04-19-00832-CV DISCUSSION Preservation of error As Jesus urges that many of Olga’s issues are not preserved for our review, we address, as a preliminary matter, the legal principles governing error preservation. These principles are applied below in the context of the issues to which they apply. Generally, to preserve error for appellate review, the record must show that the complaining party made a timely request, objection, or motion, with sufficient specificity to make the trial court aware of the complaint. TEX. R. APP. P. 33.1. The party must also obtain a ruling on that request, objection, or motion. Id. A party is required to raise certain issues in a motion for new trial as a prerequisite to raising the issue on appeal. See TEX. R. CIV. P. 324(b). One such issue is a complaint on which evidence must be heard. TEX. R. CIV. P. 324(b)(1). In addition to raising the issue, it is the responsibility of the complaining party to obtain an evidentiary hearing on it. JD Shelton Enters LLC v. AGL Constructors, No. 05-18-00765-CV, 2019 WL 2498682 , at *2 (Tex. App.—Dallas June 17, 2019, no pet.) (mem. op.); see TEX. R. APP. P. 33.1(b). “The overruling by operation of law of a motion for new trial preserves a complaint raised in the motion for appellate review only if the taking of evidence was not necessary to properly present the complaint in the trial court.” Magna Donnelly Corp. v. DeLeon, 267 S.W.3d 108 , 114 (Tex. App.—San Antonio 2008, no pet.). We turn now to Olga’s complaints on appeal. Qualification of the interpreter Olga first contends that the interpreter provided to assist her at the final hearing was not qualified. Jesus argues that this issue is not preserved for review. See TEX. R. APP. P. 33.1. We conclude that the asserted error was adequately raised in Olga’s amended motion for new trial. In -7-  04-19-00832-CV addition, as the issue is argued by Olga, it is not one that requires the taking of evidence. We conclude that the issue is properly preserved. The Texas Rules of Evidence require that “[a]n interpreter must be qualified and must give an oath or affirmation to make a true translation.” TEX. R. EVID. 604. In counties with a population of less than 50,000, 3 “a court may appoint a spoken language interpreter who is not a licensed court interpreter.” TEX. GOV’T CODE ANN. § 57.002(c). The interpreter need only be at least 18 years old, not a party to the proceeding, and qualified by the court as an expert. TEX. GOV’T CODE ANN. § 57.002(e). “An attack on the competency of an interpreter is reviewed for an abuse of discretion.” M.M.V. v. Texas Dep’t of Family & Protective Servs., 455 S.W.3d 186 , 190 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Olga does not dispute that the interpreter was over the age of 18 and that he was not a party to the proceeding. See TEX. GOV’T CODE ANN. § 57.002(e). Rather, she disputes his actual ability as a translator. In this context, Olga argues that the trial court was required to inquire on the record about the interpreter’s qualifications. She does not, however, cite any authority imposing that requirement. While Government Code section 57.002 requires that an interpreter be qualified by the court as an expert, it does not require that the court make an express finding on the record. See id. Further, the interpreter’s affidavit states that he is fluent in English and Spanish “at a high level” and has been engaged as an interpreter by the Mexican and Guatemalan consulates. Olga does not identify anything in the record refuting these qualifications, nor does she dispute them in her amended motion for new trial or in her brief on appeal. 3 We take judicial notice that, at the time of the final hearing in June 2019, Val Verde County had a population of less than 50,000. See https://www.census.gov/quickfacts/valverdecountytexas (reflecting population of 49,025 on July 1, 2019). -8-  04-19-00832-CV Olga’s argument that the interpreter was unqualified rests on her criticism that he often paraphrased or summarized her answers rather than providing a more verbatim translation. She does not, however, contend that his explanations of her answers were inaccurate. Her complaint goes only to the form in which the interpreter relayed his translation, which does not implicate his qualification to accurately translate the proceedings for her. Olga also insinuates that the interpreter was not qualified because he may have been one of the couple’s adult sons. Olga misinterprets the record. One of the couple’s sons, Jesus Tamez Suday, was present at the final hearing and took part in the off-the-record negotiations. But the son was not the same person as the interpreter, who identified himself on the record as Marcelino Sanchez Garcia. Finally, Olga complains that the trial court did not administer the oath to the interpreter until “well into the proceedings.” But the record reflects that, while the court did not administer the oath at the start of the hearing, it did so quite early in the proceeding. The only topics discussed prior to the administration of the oath were the fact of the divorce proceedings in Mexico and the extent of marital property in the United States. Much of those discussions was reiterated after the oath was administered. Again, Olga does not contend that the interpreter’s translations, either before or after administration of the oath, were inaccurate. She has not identified any harm resulting from the belated administration of the oath and none is apparent from the record. See TEX. R. APP. P. 44.1 (harm required to show reversible error). We conclude Olga has not demonstrated that the interpreter provided to assist her at the final hearing was not qualified to do so or that the timing of the oath caused her any harm. See TEX. R. EVID. 604; TEX. R. APP. P. 44.1. Issue number one is overruled. -9-  04-19-00832-CV Jurisdiction of the Mexican court In her second issue, Olga contends that the trial court should have inquired into the Mexican court’s jurisdiction over her before accepting Munoz’s assertion that the Mexican court had already entered a divorce decree. Insofar as Olga is asserting that the Texas court should have decided the issue of divorce because the Mexican court lacked jurisdiction to do so, she has not demonstrated any error. The final decree signed by the trial court acknowledges the Mexican divorce, but also specifically orders that Olga and Jesus “are divorced and that the marriage between them is dissolved on the ground of insupportability.”4 The court therefore did adjudicate the issue of divorce pursuant to Texas law. See TEX. FAM. CODE ANN. § 6.001 (recognizing insupportability as ground for dissolution of marriage). It appears Olga’s real complaint is that the Mexican court had no power to divide the couple’s property in Mexico because it lacked jurisdiction over her. Olga also argues on appeal that the Mexican court lacked jurisdiction because Jesus did not fulfill statutory residency requirements. She urges, as a result, the Texas court should not have considered the Mexican divorce decree and should, instead, have divided the property in Mexico. Olga, however, did not assert in the trial court that the Mexican court lacked personal jurisdiction over her. Instead, she urged in her amended motion for new trial only that the Texas court had dominant jurisdiction. Nor did she raise the issue of the residency requirements below. Therefore, we conclude her complaints are not preserved for review. See TEX. R. APP. P. 33.1. Olga’s second issue is overruled. Failure to divide the property in Mexico We interpret Olga’s third issue as asserting that the trial court abused its discretion by failing to divide property located in Mexico and by failing to take that property into account when 4 The trial court suggested including such language in the decree to cover the contingency that the couple was not actually divorced in Mexico. - 10 -  04-19-00832-CV dividing the couple’s assets. These assertions fail because the trial court in this case did not divide the couple’s property at all. Rather, the property division was effected by agreement of the parties. Once the court accepted the terms of the agreement as just and right, 5 it was bound by those terms. See TEX. FAM. CODE ANN. § 7.006; Swaab v. Swaab, 282 S.W.3d 519 , 528 (Tex. App.—Houston [14th Dist.] 2008, pet. dism’d w.o.j.). The Rule 11 agreement in this case specifically states, “The parties have agreed that the Court will not divide the Mexican property.” The trial court, being bound by that term of the agreement, did not abuse its discretion by not dividing the property in Mexico. Swaab, 282 S.W.3d at 529 (court did not abuse discretion by entering judgment based on property division agreement). Accordingly, we overrule issue number three. Authority to divide property in Mexico Olga contends that the property in Mexico consisted of real property and shares of stock. In her fourth issue, she complains that the trial court incorrectly advised her that it lacked authority to divide this property, and that misstatement of law colored the eventual settlement agreement. Again, we must conclude Olga’s complaint is not preserved for our review because she did not raise it in her amended motion for new trial or bring it to the trial court’s attention by any other means. See TEX. R. APP. P. 33.1. Therefore, issue four is overruled. Involvement of the trial court In conjunction with her fourth issue, Olga argues that the trial court interjected itself into the settlement negotiations as an advocate for Jesus. This asserted error was not raised in the court below and is not preserved for our review. See TEX. R. APP. P. 33.1. We note, however, that after 5 A trial court’s decision to approve or reject a property division agreement under section 7.006 of the Texas Family Code is reviewed for abuse of discretion. See Markowitz v. Markowitz, 118 S.W.3d 82 , 89 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). Olga does not raise an issue asserting abuse of discretion in approving the parties’ agreement. - 11 -  04-19-00832-CV the parties concluded their negotiations, the trial court specifically asked Olga whether she understood the agreement and whether she was entering it freely and voluntarily. Olga answered “yes” to both inquiries. Also, Olga’s son and the interpreter both submitted signed affidavits stating that Olga understood and took an active part in the settlement negotiations, which were conducted in Spanish outside the presence of the court. The record simply does not support the assertion that the trial court improperly advocated for Jesus or pressured Olga into entering the Rule 11 agreement. Olga’s final issue is overruled. CONCLUSION Having overruled all Olga’s issues on appeal, the final decree of divorce is affirmed. Sandee Bryan Marion, Chief Justice - 12 -

2020-12-01 14:08:11.769759+00

https://supremecourt.nebraska.gov/sites/default/files/a19-1023m.pdf

IN THE NEBRASKA COURT OF APPEALS MEMORANDUM OPINION AND JUDGMENT ON APPEAL (Memorandum Web Opinion) STATE V. LODING NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E). STATE OF NEBRASKA, APPELLEE, V. BASHIR V. LODING, APPELLANT. Filed December 1, 2020. No. A-19-1023. Appeal from the District Court for Douglas County: GREGORY M. SCHATZ, Judge. Affirmed. James J. Regan for appellant. Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee. PIRTLE, Chief Judge, and MOORE and RIEDMANN, Judges. RIEDMANN, Judge. INTRODUCTION Bashir V. Loding appeals from the Douglas County District Court’s denial of his verified motion for postconviction relief following an evidentiary hearing. For the reasons set forth herein, we affirm. BACKGROUND Loding was charged with first degree sexual assault of a child. The information alleged that on or about May 1 through September 17, 2015, Loding, a man at least 19 years old or older, subjected A.B., a child less than 12 years old, to sexual penetration. A jury found Loding guilty, and he was sentenced to 35 to 50 years’ imprisonment. In his direct appeal, he challenged the sufficiency of the evidence to support his conviction, claimed that his sentence was excessive, and asserted several claims of ineffective assistance of trial counsel. -1- As relevant to the issues raised in this appeal, the Nebraska Supreme Court found that the record on direct appeal was insufficient to address whether Loding’s trial counsel was ineffective in informing the jury during opening statements that A.B.’s mother would be called to testify at trial, but then failing to call her as a witness. See State v. Loding, 296 Neb. 670 , 895 N.W.2d 669 (2017). The Supreme Court otherwise affirmed Loding’s conviction and sentence. See id. In July 2017, Loding filed a pro se motion for postconviction relief. Thereafter, the district court appointed counsel to represent him, and counsel was permitted to file a supplemental motion for postconviction relief. Relevant to this appeal, the motions alleged that trial counsel was ineffective in failing to properly explain the issues regarding Loding testifying at trial such that any decision by Loding to not testify was not done knowingly and voluntarily, and failing to depose or obtain sworn or other statement of A.B.’s mother in anticipation of trial which would have revealed the nature of her testimony prior to telling the jury that she would appear and provide exculpatory testimony. The district court granted an evidentiary hearing on these claims. Loding was represented at trial by James Schaefer, who was assisted by his son. As the Supreme Court addressed in Loding’s direct appeal, the parties were of the belief that Schaefer’s son remained a senior certified law student at the time of trial, but they later realized he did not meet the qualifications. See State v. Loding, supra. However, the Supreme Court concluded that there was no per se ineffective assistance of counsel in the son’s participation at trial because Schaefer, a qualified and licensed attorney in Nebraska, was the lead attorney for Loding’s trial and was present at all times throughout trial and for all interactions between his son and Loding. See id. A.B. disclosed the sexual abuse by Loding in September 2015. The same day, A.B.’s mother was interviewed at a child advocacy center, and a recording of the interview was received into evidence at the evidentiary hearing. In the interview, A.B.’s mother provided Loding’s identity to investigators, and it is clear from the video that she was extremely upset and outraged at Loding for harming A.B. At the end of the interview, A.B.’s mother was arrested and ultimately charged with felony child abuse related to the allegations A.B. made against Loding. A.B.’s mother was represented on those charges by an attorney. The attorney testified at the evidentiary hearing that he watched the recorded interview with A.B.’s mother during his representation of her. He explained that prior to Loding’s trial, he spoke with Schaefer and Schaefer’s son about A.B.’s mother’s willingness to testify at Loding’s trial. He testified that after discussing the matter with A.B.’s mother, she directed him to inform the Schaefers that she would testify in favor of Loding, because she did not think anything happened. So, at his client’s direction, the attorney told the Schaefers that A.B.’s mother would testify that no sexual assault had occurred or that Loding did not have the opportunity to commit the sexual assault. He clarified that A.B.’s mother “very specifically directed [him] to . . . tell the Schaefers that she did not think that any sexual assault had occurred, and she would be happy to testify upon [Loding’s] behalf.” According to the attorney, Schaefer requested on more than one occasion to be allowed to speak directly with A.B.’s mother, but as her attorney, he was not comfortable with the request, and after speaking with A.B.’s mother and offering his advice, she decided she did not want to have such a meeting, so he denied Schaefer’s request. The last time he talked with Schaefer before -2- Loding’s trial began, he again indicated to Schaefer that A.B.’s mother was willing to testify in a manner that would be seen as beneficial to Loding. The depositions of Schaefer and his son were received into evidence at the evidentiary hearing. They both explained that Loding was at Schaefer’s office very frequently during their representation of him; Schaefer estimated that Loding was there 50 to 100 times prior to trial. Schaefer and his son each watched the recorded interview of A.B.’s mother and watched it with Loding. Schaefer testified that he spoke with A.B.’s mother’s attorney three to five times prior to trial and that he was always reassured that A.B.’s mother was going to testify consistently with not believing the allegations A.B. made and feeling angry at A.B. In other words, the attorney told Schaefer that A.B.’s mother would testify in a manner that was favorable to Loding. Schaefer’s son reiterated this testimony, stating that Schaefer told him that he had talked to the attorney several times and that he said that A.B.’s mother would testify on Loding’s behalf because she did not believe the allegations. Schaefer explained that his overall trial strategy was that A.B. did not appreciate Loding dating her mother and she was making up the allegations to get Loding “out of the picture.” So calling A.B.’s mother as a witness fit into his trial strategy. Schaefer’s initial decision to call A.B.’s mother as a witness was partially based on his discussions with her attorney and partially based on his discussions with Loding, who Schaefer said personally and continually assured him that A.B.’s mother would “back him up on this.” According to Schaefer, Loding repeatedly told him that he was certain that A.B.’s mother was going to say that A.B. was making up the allegations. Schaefer’s son also testified that Loding had indicated to him that A.B.’s mother “knows nothing happened.” Schaefer explained that at all times, Loding was aware of the decision to call A.B.’s mother as a witness at trial and that it was “part of his wish to have her called” as a witness. Schaefer issued a subpoena for A.B.’s mother to testify at trial. During opening statements at trial, Schaefer’s son informed the jury that A.B.’s mother was going to testify on Loding’s behalf that he did not have the opportunity to sexually assault A.B. During trial, the judge was made aware that there were criminal charges pending against A.B.’s mother, so he wanted to have a hearing outside the presence of the jury and with her attorney present, concerning her rights regarding testifying and incriminating herself. Once A.B.’s mother was brought into the courtroom, however, she became irate, yelling that she wanted Loding to go to jail for the rest of his life and calling him names. The sheriffs had to physically restrain her and take her out of the courtroom. Her outburst in court was the first time that her attorney realized that she would not be testifying on behalf of Loding. He did not know her exact reasoning for the outburst and did not expect it. After the outburst, Schaefer discussed A.B.’s mother with Loding, and they decided not to call her as a witness. On the record at trial, Schaefer explained to the court that after discussing the matter with Loding, they felt that it was in his best interest not to call A.B.’s mother to testify. Loding then, personally, told the court on the record that he did not want A.B.’s mother to testify. Loding did not call any witnesses on his behalf at trial. By the time of closing arguments, Schaefer’s trial strategy had changed to arguing that Loding was presumed innocent, the State had the burden of proving him guilty, and it failed to prove his guilt beyond a reasonable doubt; thus, -3- he did not need to call any witnesses or present any evidence. In closing argument, Schaefer’s son explained to the jury that although they initially said they would call A.B.’s mother to testify, they did so believing that the State would prove its case, but he argued that the State did not meet that burden. A deposition of Loding was also received into evidence at the evidentiary hearing. Therein, Loding claimed that prior to trial, neither Schaefer nor his son ever told him that A.B.’s mother was willing to testify favorably to him at trial. He denied getting any information from A.B.’s mother that she would testify for him. He additionally claimed that after A.B.’s mother’s courtroom outburst, Schaefer and his son did not talk to him about not calling her as a witness. After the conclusion of the evidentiary hearing, the district court entered a written order. It concluded that Loding and his trial counsel made a tactical decision to subpoena A.B.’s mother to testify after being assured on more than one occasion that she would testify favorably for Loding, despite what she had initially told investigators in her recorded interview. The court observed that her attorney prevented Schaefer from interviewing her or taking her deposition prior to trial and that it was not until the morning of her anticipated testimony that Schaefer was allowed to ask her about her testimony. The district court determined that Schaefer made a tactical decision to tell the jury about the anticipated testimony of A.B.’s mother and then explained her absence to the jury in its closing. The court ultimately found that Loding failed to show that Schaefer’s performance was deficient and failed to prove how the outcome of trial would have been different had Schaefer not mentioned A.B.’s mother as a possible witness in opening statements. The court therefore denied the motion for postconviction relief. Loding appeals. ASSIGNMENTS OF ERROR Loding assigns, consolidated, restated, and renumbered, that the district court erred in denying his motion for postconviction relief because trial counsel was ineffective in (1) his handling of the anticipated testimony of Loding and (2) his handling of the anticipated testimony of A.B.’s mother. STANDARD OF REVIEW Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. State v. McGuire, 299 Neb. 762 , 910 N.W.2d 144 (2018). When reviewing a question of law, an appellate court resolves the question independently of the lower court’s conclusion. Id. A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. Id. In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier of fact, resolves conflicts in the evidence and questions of fact. An appellate court upholds the trial court’s factual findings unless they are clearly erroneous. Id. With regard to questions of counsel’s performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court’s conclusion. State v. McGuire, supra. -4-  ANALYSIS To establish a right to postconviction relief because of counsel’s ineffective assistance, the defendant has the burden, in accordance with Strickland v. Washington, supra, to show that counsel’s performance was deficient; that is, counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law. State v. Collins, 299 Neb. 160 , 907 N.W.2d 721 (2018). Next, the defendant must show that counsel’s deficient performance prejudiced the defense in his or her case. Id. To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. Id. A reasonable probability does not require that it be more likely than not that the deficient performance altered the outcome of the case; rather, the defendant must show a probability sufficient to undermine confidence in the outcome. State v. Glass, 298 Neb. 598 , 905 N.W.2d 265 (2018). A court may address the two prongs of this test, deficient performance and prejudice, in either order. State v. Collins, supra. The entire ineffectiveness analysis is viewed with a strong presumption that counsel’s actions were reasonable. State v. Alarcon-Chavez, 295 Neb. 1014 , 893 N.W.2d 706 (2017). When reviewing claims of ineffective assistance, an appellate court will not second-guess a trial counsel’s reasonable strategic decisions. Id. And an appellate court must assess the trial counsel’s performance from the counsel’s perspective when the counsel provided the assistance. Id. Loding assigns that the district court “erred in determining that trial counsel had met the minimum obligation of advising [him] of his right to testify or not such that any agreement of [Loding] regarding the choice not to testify was not done knowingly and voluntarily.” Brief for appellant at 3. In his supplemental motion for postconviction relief, Loding asserted that trial counsel was ineffective when he “failed to properly explain the issues regarding [Loding] testifying at trial such that any decision by [Loding] to not testify was not done knowingly and voluntarily.” Any issues related to Loding testifying at trial are procedurally barred, however, because he failed to raise them on direct appeal. Loding was represented by different counsel on direct appeal than at trial. Ordinarily, when a defendant’s trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel’s ineffective performance which is known to the defendant or is apparent from the record. State v. Parnell, 305 Neb. 932 , 943 N.W.2d 678 (2020). Otherwise, the issue will be procedurally barred. Id. A claim of ineffective assistance of appellate counsel which could not have been raised on direct appeal may be raised on postconviction review. Id. When a person seeking postconviction relief has different counsel on appeal than at trial, the motion for postconviction relief is procedurally barred if the person seeking relief (1) knew of the issues assigned in the postconviction motion at the time of the direct appeal, (2) failed to assign those issues on direct appeal, and (3) did not assign as error the failure of appellate counsel on direct appeal to raise the issues assigned in the postconviction motion. Id. In the present case, at the time of direct appeal, Loding was aware of any issues related to comments made during opening statements at trial and surrounding his discussions with trial counsel regarding whether to testify at trial. He was therefore required to raise these issues on -5- direct appeal, and he does not assign as error appellate counsel’s failure to raise these issues on direct appeal. Furthermore, the supplemental motion for postconviction relief did not allege that trial counsel was ineffective in informing the jury that Loding would testify and then failing to call him as a witness; rather, the only claim raised and addressed by the district court that related to Loding’s potential testimony claimed that trial counsel failed to properly advise him on his right to testify. Loding attempts to avoid the procedural bar by claiming that the fact that he did raise, on direct appeal, claims of ineffective assistance of counsel regarding comments made during opening statements is sufficient to have preserved his argument regarding his own testimony. Although he did raise several issues regarding comments trial counsel made during opening statement and closing argument, it is clear that he did not raise any issue regarding his own testimony. As the Supreme Court outlined in State v. Loding, 296 Neb. 670 , 681-82, 895 N.W.2d 669 , 680 (2017): Loding alleges that he received ineffective assistance of counsel during opening statement and closing argument. He claims that counsel was ineffective in failing (1) to call on A.B.’s mother to testify or explain her absence after stating during opening statement she would be called upon, (2) to mention during closing argument other individuals who had sexually assaulted A.B., and (3) to give a longer closing argument or say more than that Loding was not guilty. These three claims are insufficient to have preserved any issues relating to informing the jury that Loding would testify or trial counsel’s discussions with Loding about his decision whether to testify. As a result, we do not address any claims related to Loding testifying at trial. Loding also argues that he was entitled to postconviction relief because his trial counsel performed deficiently in his handling of the anticipated testimony of A.B.’s mother. He claims that trial counsel was ineffective in telling the jury during opening statements that A.B.’s mother would testify in favor of Loding without having sufficiently investigated the substance of her testimony. We disagree. According to Schaefer, his overall trial strategy was that A.B. made up the allegations against Loding to get Loding “out of the picture.” So calling A.B.’s mother as a witness fit into that trial strategy. Schaefer watched the recorded interview with A.B.’s mother, but spoke with her attorney three to five times prior to trial, and was always reassured that A.B.’s mother was going to testify consistently with not believing A.B. and feeling angry at her. In other words, the attorney told Schaefer that A.B.’s mother would testify in a manner that was favorable to Loding. In addition, Loding, personally, repeatedly assured Schaefer that A.B.’s mother would “back him up on this” and testify that A.B. was making up the allegations. Likewise, Schaefer’s son testified that he watched the recorded interview of A.B.’s mother at the Schaefers’ office with Loding, and Loding indicated to him that A.B.’s mother knew that “nothing happened.” According to Schaefer’s son, Schaefer told him that he had spoken with A.B.’s mother’s attorney, who reported that she would testify on Loding’s behalf because she did not believe the allegations were true. Mirroring this testimony, A.B.’s mother’s attorney explained that his client directed him to inform the Schaefers that she would testify in a manner that would be beneficial to Loding because -6- she did not think anything happened. So, at the direction of A.B.’s mother, her counsel told the Schaefers that she would testify and assert that no sexual assault had occurred or that Loding did not have the opportunity to commit the sexual assault. He said that A.B.’s mother “very specifically directed [him] to . . . tell the Schaefers that she did not think that any sexual assault had occurred, and she would be happy to testify upon [Loding’s] behalf.” Schaefer requested on more than one occasion to be allowed to speak directly with A.B.’s mother, but her attorney decided that he was not comfortable allowing that conversation to occur, and after he conferred with A.B.’s mother, she decided she did not want to have such a meeting, so they denied Schaefer’s request. The last time A.B.’s mother’s attorney talked with Schaefer before opening statements at trial, he reiterated that she was willing to testify in a manner that would be seen as consistent with helping Loding. A.B.’s mother’s outburst in court was the first time that her attorney realized that she would not be testifying on behalf of Loding. He did not know her exact reasoning for the outburst, and he did not expect it. Loding argues that Schaefer’s conversations with A.B.’s mother’s attorney were insufficient investigation into the potential testimony of A.B.’s mother and that he should have also attempted to depose her or “demand” to be allowed to interview her. Brief for appellant at 14. A defense attorney has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. State v. Alarcon-Chavez, 295 Neb. 1014 , 893 N.W.2d 706 (2017). See, also, Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984). In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments. Strickland v. Washington, supra. Under the circumstances present here, we conclude that the district court did not err in finding that Schaefer’s decision not to further investigate the potential testimony of A.B.’s mother was reasonable. We understand that the statements and actions of A.B.’s mother shown in the recorded interview are at odds with the notion of her testifying in favor of Loding at trial. However, Schaefer spoke with her attorney on multiple occasions prior to trial and was repeatedly reassured that A.B.’s mother was willing to testify and would do so in a manner that was favorable to Loding. Schaefer sought to speak with A.B.’s mother personally, but her attorney explained that he was not comfortable allowing Schaefer to do so because of the charges she was facing related to A.B.’s allegations against Loding. The district court determined that Schaefer made a tactical decision to subpoena A.B.’s mother as a witness at Loding’s trial and tell the jury about A.B.’s mother’s anticipated testimony in opening statement after being assured on more than one occasion that A.B.’s mother would testify in favor of Loding, despite what she had said in her initial recorded interview. And we apply a heavy measure of deference to Schaefer’s judgment. See Strickland v. Washington, supra. In addition, Loding, himself, repeatedly assured Schaefer that A.B.’s mother would testify favorably to him at trial. Although Loding denied making these assertions to Schaefer, the district court found Schaefer’s testimony in this regard to be credible, and this factual finding is not clearly erroneous. See State v. McGuire, 299 Neb. 762 , 910 N.W.2d 144 (2018) (trial court’s factual findings upheld unless they are clearly erroneous). -7-  When the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. Strickland v. Washington, supra. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable. Both Schaefer and his son explained how frequently Loding was in their office prior to trial, and they both testified that Loding assured them that A.B.’s mother would testify favorably to him at trial. Given Schaefer’s multiple conversations with A.B.’s mother’s attorney and Loding prior to trial, it was not unreasonable for him to decline to further investigate whether A.B.’s mother would, in fact, testify favorably to Loding at trial. Therefore, the district court did not err in denying postconviction relief. CONCLUSION We find no error in the district court’s conclusion that Loding failed to establish his claims of ineffective assistance of counsel. The district court’s order denying postconviction relief is therefore affirmed. AFFIRMED. -8-

2011-08-23 09:39:35+00

http://bulk.resource.org/courts.gov/c/F2/762/762.F2d.1021.84-8882.html

762 F.2d 1021 Arrington, In re 84-8882 United States Court of Appeals, Eleventh Circuit. 4/30/85 1 N.D.Ga. DISMISSED

2013-07-03 22:53:57.786124+00

http://pacer.ca4.uscourts.gov/opinion.pdf/955043.U.pdf

Filed: February 12, 1996 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 95-5043 (CR-94-5-4) United States of America, Plaintiff - Appellee, versus Stephen Jones, etc., Defendant - Appellant. O R D E R The Court amends its opinion filed December 28, 1995, as follows: On the cover sheet, section 3, line 4 -- the lower court number is corrected to read " CR-94-5-4." For the Court - By Direction /s/ Bert M. Montague Clerk UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 95-5043 STEPHEN JONES, a/k/a Tomeek Stefon, Defendant-Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Shelby. Richard L. Voorhees, Chief District Judge. (CR-94-5-4) Submitted: November 30, 1995 Decided: December 28, 1995 Before HALL and HAMILTON, Circuit Judges, and BUTZNER, Senior Circuit Judge. _________________________________________________________________ Affirmed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL Roger T. Smith, Asheville, North Carolina, for Appellant. Mark T. Calloway, United States Attorney, Jerry W. Miller, Assistant United States Attorney, Asheville, North Carolina, for Appellee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PER CURIAM: Appellant, Stephen Jones, appeals the jury's verdict finding him guilty of conspiracy to possess with intent to distribute in excess of fifty grams of crack cocaine1 and his sentence of 330 months incarcer- ation. Jones contends that the jury's verdict should be overturned and a retrial granted because of alleged errors by the district court. Specif- ically, Jones alleges that the district court erred by: (1) denying his motion to suppress evidence obtained in a search of a co-conspirator's mail; (2) denying his motion for acquittal; (3) admitting testimony and evidence regarding the crack cocaine; (4) enhancing his sentence pursuant to United States Sentencing Commission, Guidelines Manual, § 3B1.1(a) (Nov. 1994), for being an organizer or leader of a criminal activity; and (5) denying his motion to appoint his own expert witness to weigh the crack cocaine. Jones also contends that he was denied due process because of the jury's racial composition. We have reviewed the record and find no reversible error. Accord- ingly, we affirm Jones's conviction and sentence. First, Jones asserts that the court improperly denied his motion to suppress evidence obtained in a search of a co-conspirator's mail. We review de novo the district court's conclusion that Jones, who did not reside at the address on the package, had no standing to challenge the validity of the search.2 Jones did not put his name or address on the package,3 nor did he acknowledge that he had sent the package to the co-conspirator.4 Thus, Jones's claim is without merit because he _________________________________________________________________ 1 21 U.S.C. §§ 841 (a)(1), 846 (1988). 2 United States v. Rusher, 966 F.2d 868 , 873 (4th Cir.), cert. denied, ___ U.S. ___, 61 U.S.L.W. 3285 (U.S. 1992). 3 See United States v. Mehra, 824 F.2d 297 , 299 (4th Cir.), cert. denied, 484 U.S. 915 (1987). 4 See Rakas v. Illinois, 439 U.S. 128 , 131 n.1 (1978) ("The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or sei- zure."). 2 failed to establish a reasonable expectation of privacy in the co- conspirator's mail.5 Next, Jones asserts that the evidence was insufficient for the court to deny his motion for acquittal. We review a denial of a motion for acquittal under a sufficiency of evidence standard.6 At trial, the Gov- ernment showed by witness testimony and forensic evidence that on several different occasions Jones obtained crack cocaine in New York, packaged it, wrote instructions to his co-conspirators regarding its sale price, mailed the crack cocaine to his co-conspirators, and then travelled to North Carolina to assist in the distribution of the drugs. We find the evidence, when viewed in the light most favorable to the government, sufficient for a rational jury to convict Jones; thus, the district court's denial of Jones's Rule 29 motion was proper.7 Next, Jones contends that the Government's forensic chemist should not have been allowed to testify regarding the chemical com- position and weight of the crack cocaine and that a defense expert witness should have been appointed to testify to the weight of the drugs seized. Expert testimony is not necessary to establish the iden- tity of a substance where the witness is familiar with illegal drugs and where circumstantial evidence supports the testimony.8 Further, denial of an expert witness must be prejudicial to the defendant's defense,9 and Jones was not prejudiced by the court's denial of an expert wit- ness because at sentencing the court accepted the lesser quantity pro- posed by Jones. Jones also alleges that there was a break in the chain of custody which made the seized drugs inadmissible. An evidentiary ruling that is not specifically objected to is reviewed only for plain error.10 Vari- _________________________________________________________________ 5 See Rawlings v. Kentucky, 448 U.S. 98 (1980). 6 FED. R. CRIM. P. 29; United States v. Brooks, 957 F.2d 1138 , 1147 (4th Cir.), cert. denied, ___ U.S. ___, 60 U.S.L.W. 3879 (U.S. 1992). 7 Brooks, 957 F.2d at 1147. 8 See United States v. Uwaeme, 975 F.2d 1016 , 1019 (4th Cir. 1992); United States v. Dolan, 544 F.2d 1219 , 1221 (4th Cir. 1976). 9 United States v. Perrera, 842 F.2d 73 , 77 (4th Cir.), cert. denied, 488 U.S. 837 (1988). 10 FED. R. CRIM . P. 52(b). 3 ous law enforcement officers laid a foundation of how the drugs were discovered, identified, transferred, and tested. Further, a co- conspirator identified the drugs and their unique packaging as consis- tent with prior drug shipments by Jones. We find the trial testimony sufficient to support the admission of the evidence as authentic.11 Next, Jones asserts that the court improperly increased his base offense level four points pursuant to United States Sentencing Com- mission, Guidelines Manual, § 3B1.1(a) (Nov. 1994), for being an organizer or leader of a criminal activity involving five or more per- sons. The finding by the district court that Jones was an organizer in the conspiracy is a finding of fact reviewable only for clear error.12 Testimony at trial established that the conspiracy consisted of at least five people and that Jones was a key person in the conspiracy. Fur- ther, the district court did not err in counting Jones as one of the five participants in the conspiracy.13 Accordingly, the district court's application of U.S.S.G. § 3B1.1(a) was not clearly erroneous.14 Lastly, Jones contends that he was denied a fair trial because the jury panel contained no African-Americans. Challenges to jury com- position must be raised in a timely fashion to avoid waiver.15 Until now, Jones never objected to the composition of the jury. Because Jones failed to raise the issue of the jury's composition during voir dire or at trial, he waived his right to bring this claim. Accordingly, we affirm Jones's conviction and sentence. We dis- pense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED _________________________________________________________________ 11 FED. R. EVID. 901(a) & (b)(4). 12 See United States v. Hicks, 948 F.2d 877 , 881 (4th Cir. 1991). 13 United States v. Fells, 920 F.2d 1179 , 1182 (4th Cir. 1990), cert. denied, 501 U.S. 1219 (1991). 14 See United States v. White, 875 F.2d 427 , 431 (4th Cir. 1989). 15 United States v. Webster, 639 F.2d 174 , 180 (4th Cir.), cert. denied, 454 U.S. 857 (1981). 4

2021-01-26 17:18:05.839271+00

http://www.courts.state.va.us/opinions/opncavwp/0796203.pdf

COURT OF APPEALS OF VIRGINIA Present: Chief Judge Decker, Judges Beales and Huff UNPUBLISHED Argued by videoconference KENNETH REYNOLDS MEMORANDUM OPINION* BY v. Record No. 0796-20-3 CHIEF JUDGE MARLA GRAFF DECKER JANUARY 26, 2021 FALLETTA ENTERPRISES, INC. AND MASSACHUSETTS BAY INS. CO. FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Hannah Bowie (Osterbind Law, PLLC, on brief), for appellant. Brian M. Frame (McAngus Goudelock & Courie, PLLC, on brief), for appellees. Kenneth Reynolds (the claimant) appeals a ruling of the Virginia Workers’ Compensation Commission denying his claim for benefits for injuries he sustained while working for Falletta Enterprises, Inc. He argues that the Commission erred by concluding that he failed to prove that his injury arose “out of” his employment as required for coverage under the Virginia Workers’ Compensation Act. We hold that the record supports the Commission’s ruling that the claimant did not prove that his injury arose out of his employment. Consequently, we affirm the denial of benefits. * Pursuant to Code § 17.1-413, this opinion is not designated for publication.  I. BACKGROUND1 Kenneth Reynolds filed a claim alleging that he injured his left knee on August 1, 2019, when he “[s]tepped out of the rear door of [a] work van” while working for Falletta Enterprises. Falletta Enterprises and its insurer, Massachusetts Bay Ins. Co. (collectively the employer), denied his claim for medical and wage loss benefits. In a hearing before a deputy commissioner, the claimant described himself as a “service plumber” who had worked in that capacity for more than twenty years. He testified in very limited fashion about the circumstances surrounding his injury, which occurred when he stepped out of his “work van.”2 He explained that he “g[o]t in the van through the back door,” collected the necessary “stuff,” and returned to “the back.” The claimant “set down [his] tray” but “still [had] stuff in [his] hand.” He then “stepped out of the van” onto the customer’s driveway. When he did so, he felt a “twinge” in his left knee but had no “immediate[]” pain and concluded that he was “all right.” He “[g]rabbed [his] stuff” and “went in[to] the house.” The claimant confirmed that “the way [he] stepped out [of the truck] on August 1” was “the way [he] normally step[ped] out of the truck” and was an activity in which he engaged repeatedly “throughout the work day.” He stated that his left leg was very stiff by the time he completed the job, which he described as “just a simple reconnect underneath the kitchen sink.” The claimant further described his injury as “something moving in [his] knee that ha[d] gotten separated, torn or something when [he] stepped out of that van.” He sought medical treatment several weeks later when he experienced significant swelling. The claimant was 1 On appeal from the Commission, we view the evidence in the light most favorable to the prevailing party before the Commission, in this case the employer. See Apple Constr. Corp. v. Sexton, 44 Va. App. 458 , 460 (2004). 2 Although the claimant referred to the van in this fashion, no evidence in the record establishes either that the van was provided by his employer or that he was required to use it. -2- diagnosed as having “primary osteoarthritis, with a Baker’s cyst,” in his left knee. He received various conservative treatments, but when they failed to reduce his pain, a physician recommended an MRI to determine whether he had a meniscus tear requiring surgical intervention. At the hearing, the employer defended in part on the ground that the evidence did not prove that the claimant’s knee problem arose out of his employment. The deputy commissioner found the claimant’s testimony “entirely reliable” and “credible” but held that the claimant failed to meet his burden of proving an injury that arose out of his work as a plumber. On request for review, the Commission unanimously affirmed the deputy commissioner’s denial of benefits. Applying the case law applicable to an injury sustained while traversing steps, it reasoned that no evidence concerning the circumstances under which the claimant exited the vehicle supported the conclusion that a “work-related risk or significant work-related exertion” caused the claimant’s injury. II. ANALYSIS The claimant contends that the Commission erred as a matter of law by holding that the evidence failed to prove that his knee injury, which occurred when he stepped out of his work van, arose out of his employment. He further suggests that the Commission improperly relied on evidence concerning the manner in which he stepped out of the van, which he indicated was “normal,” as barring a ruling that the injury arose out of the employment. We address these assignments of error together, considering the second one as a component of the first. The Virginia Workers’ Compensation Act provides coverage for injuries by accident that “aris[e] out of and in the course of the employment.” Dollar Tree Stores, Inc. v. Wilson, 64 Va. App. 103 , 108 (2014) (quoting Code § 65.2-101). Both “conditions must be satisfied before compensation can be awarded.” King v. DTH Contract Servs. Inc., 69 Va. App. 703 , 712 (2019) -3- (quoting Graybeal v. Bd. of Supers., 216 Va. 77 , 78 (1975)). The arising “out of” and “in the course of” requirements are distinct, and Courts “must be vigilant” not “to conflate the two concepts.” Bernard v. Carlson Cos.—TGIF, 60 Va. App. 400 , 405 (2012). The claimant bears the burden of proving these elements “by a preponderance of the evidence, and not merely by conjecture or speculation.” Cent. State Hosp. v. Wiggers, 230 Va. 157 , 159 (1985) (per curiam). “Whether an injury arises out of the employment ‘involves a mixed question of law and fact . . . .’” Conner v. City of Danville, 70 Va. App. 192 , 200 (2019) (quoting Blaustein v. Mitre Corp., 36 Va. App. 344 , 348 (2001)). This Court conducts a purely de novo review of the Commission’s “ultimate determination as to whether the injury arose out of the claimant’s employment.” Norris v. ETEC Mech. Corp., 69 Va. App. 591 , 597 (2018) (quoting Stillwell v. Lewis Tree Serv., 47 Va. App. 471 , 477 (2006)). However, we review all facts and “‘all inferences reasonably deducible [from those facts] in the light most favorable’ to [the] employer, since it was the prevailing party below.” Mouhssine v. Crystal City Laundry, 62 Va. App. 65 , 73 (2013) (quoting Bassett Furn. Indus. v. McReynolds, 216 Va. 897 , 899 (1976)). The reviewing court is bound by the Commission’s “underlying factual findings if [they] are supported by credible evidence.” Norris, 69 Va. App. at 597 (quoting Stillwell, 47 Va. App. at 477). Consistent with this well-established standard, when this Court “determin[es] whether credible evidence exists,” it cannot “retry the facts, reweigh the preponderance of the evidence, or make [its] own determination of the credibility of the witnesses.” Wilson, 64 Va. App. at 105 (quoting Wagner Enters. v. Brooks, 12 Va. App. 890 , 894 (1991)). This highly deferential standard of review for factual findings applies “regardless of whether contrary evidence exists or contrary inferences may be drawn” from the evidence. Rusty’s Welding Serv., Inc. v. Gibson, 29 Va. App. 119 , 131 (1999) (en banc). -4-  “The phrase arising ‘in the course of’ refers to the time, place, and circumstances under which the accident occurred.” Va. Emp. Comm’n v. Hale, 43 Va. App. 379 , 384 (2004) (quoting Cnty. of Chesterfield v. Johnson, 237 Va. 180 , 183 (1989)). The “in the course of” element is fairly easily satisfied and is not in dispute in this case. See Bernard, 60 Va. App. at 405 (recognizing that the “in the course of” element is the only one required for compensability under the “positional risk” test); Johnson, 237 Va. at 184-85 (noting that under the “positional risk” test, “simply being injured at work is sufficient” to establish compensability). The “arising ‘out of’” component “refers to the origin or cause of the injury.” Hale, 43 Va. App. at 384 (quoting Johnson, 237 Va. at 183). Virginia, by also requiring proof that the injury arose “out of” the employment, “follows the ‘actual risk’ [test].” Bernard, 60 Va. App. at 405 (quoting Taylor v. Mobil Corp., 248 Va. 101 , 107 (1994)); see also id. (recognizing that requiring proof only that the injury arose in “the course of” the employment is referred to as positional risk doctrine). “The ‘arising out of’ prong of the statutory test is ‘to be liberally construed to carry out the humane and beneficent purpose of’ the Act.” O’Donoghue v. United Cont’l Holdings, Inc., 70 Va. App. 95 , 103 (2019) (quoting Lucas v. Lucas, 212 Va. 561 , 562-63 (1972)). Nevertheless, an appellate court “cannot permit a liberal construction to change the meaning of the statutory language or the purpose of the Act.” Am. Furniture Co. v. Doane, 230 Va. 39 , 42 (1985), quoted with approval in Jeffreys v. Uninsured Emp.’s Fund, 297 Va. 82 , 94 (2019). Under Virginia’s actual risk test, “[a]n injury does not arise out of the employment ‘merely because it occurred during the performance of some employment duty if the act performed . . . is not a causative hazard of the employment.’” Haley v. Springs Global U.S., Inc., 54 Va. App. 607 , 613 (2009) (quoting Nurses 4 You, Inc. v. Ferris, 49 Va. App. 332 , 340-41 (2007)). “Simple acts of walking, bending, . . . turning,” or even climbing stairs, “without [proof of] any other contributing environmental factors, are not risks of employment.” Id. (quoting -5- Nurses, 49 Va. App. at 341); see Johnson, 237 Va. at 186 (holding that the evidence supported the Commission’s denial of benefits because “there was nothing unusual about or wrong with the steps” on which the claimant fell and he was “injured by the mere act of turning”). By contrast, “[a] step on a staircase or [one leading] into [the] cab [of a truck] can cause an injury” arising out of the employment if either “that step has some defect” or some other employment-related factor contributes to cause the injury. Haley, 54 Va. App. at 613. For example, the Court upheld the Commission’s award of benefits to a prison guard who fell while walking down an ordinary flight of stairs. See Marion Corr. Treatment Ctr. v. Henderson, 20 Va. App. 477 , 481 (1995). The record in that case included evidence that “[o]bservation of the guard towers was one of the security functions of [the guard’s] employment.” Id. at 480 . Further, the guard testified that when the accident occurred, he had “just acknowledged” one tower, “was descending the stairs,” and had turned his attention to a different tower. Id. Based on the Commission’s view of the evidence, it found that the guard’s “job responsibilities caused him to watch the tower guards rather than the steps,” thereby “increas[ing] his risk of falling on this occasion and directly contribut[ing] to cause his fall and injury.” Id. at 479-81 . This Court affirmed the Commission’s conclusion, based on its underlying findings of fact, that “how [the guard] performed his job provided the ‘critical link’ between the conditions of the workplace and the injury,” thereby satisfying the “aris[ing] out of” prong. Id. at 479-80 . We have also recognized that “even a step that is ‘just a little bit higher than usual’ can constitute a risk of employment.” Nurses, 49 Va. App. at 341 (emphasis added) (quoting Reserve Life Ins. Co. v. Hosey, 208 Va. 568 , 569 (1968)). For example, in Reserve Life Insurance Co. v. Hosey, the Supreme Court of Virginia affirmed the Commission’s award of benefits to a claimant injured while ascending an unfamiliar flight of stairs, which were made of rocks and were just slightly higher than ordinary steps. 208 Va. at 569, 572 . -6-  However, simply because unusual steps or particular job duties can constitute a risk of employment does not mean that all steps or all job duties do so as a matter of law. As this Court has previously noted, in evaluating whether a claim arose “out of” the employment, “to a certain extent each case must stand alone” because “[t]he facts in no two cases are identical.” Haley, 54 Va. App. at 614 (quoting Richmond Mem. Hosp. v. Crane, 222 Va. 283 , 286 (1981)). These principles dictate that we affirm the Commission’s denial of benefits for the claimant here, just as this Court did in Haley v. Springs Global U.S., Inc., 54 Va. App. at 610-11. In Haley, the employee was climbing the steps to the cab of his employer’s truck when his left knee “gave way” with “no direct trauma,” and he was later diagnosed with a ruptured tendon. Id. at 611. The evidence established that the first step was “shorter than a regular cab’s step[] but higher than . . . a traditional step in a staircase.” Id. at 610. The evidence further indicated that the employee “had probably used these steps into his [truck cab] about fifteen times that day with no incident.” Id. Finally, the employee did not step “awkward[ly]” or slip, and “he did not believe that ‘there [was] anything overly strenuous about stepping up onto the step.’” Id. (second alteration in original). On those facts, the Commission concluded that the employee failed to prove “that his injury ‘arose out of’ his employment,” and it denied his claim for benefits. Id. at 611. On appellate review, this Court held that the Commission did not err in ruling that the employee failed to meet his burden of proof “[g]iven the meager record” and the Commission’s factual findings. Id. at 612. Similarly in the instant case, the record supports the Commission’s conclusion that the claimant’s injury did not arise out of his employment. The injury unquestionably arose in the course of the claimant’s employment, but the facts in the record surrounding how he exited the van and what work-related factors might have contributed to his injury are virtually nonexistent. The claimant explained that he “g[o]t in the van through the back door,” collected the necessary -7- “stuff,” and returned to “the back.” He then “set down [his] tray” but “still [had] stuff in [his] hand” as he stepped out of the van. The claimant gave no testimony about the height from which he stepped out of the van and made clear that he “set down [his] tray” before doing so. Although he indicated that he “still [had] stuff in [his] hand” when he “stepped out,” he did not elaborate regarding what he was holding or how large or heavy the items were. Nor did he establish that the size or weight of the items might have had a role in causing his injury, such as by throwing him off balance as he left the vehicle or causing him to experience a more significant impact with the ground than usual. In fact, to the contrary, the claimant testified that the manner in which he exited the van was “normal,” testimony that he gave on both direct examination and cross-examination. Finally, his testimony about the nature of the repair job itself was that it was “a simple reconnect underneath the kitchen sink,” which also does not compel the conclusion that he was carrying heavy tools, parts, or other equipment. The deputy commissioner, although crediting the claimant as an “entirely reliable” and “credible” witness, outlined the types of evidence that could have helped to establish that his injury arose “out of” his employment but were absent from the record. He noted that the claimant did not suggest that he “stepped down from an unusual height” or that some other “environmental condition” or “complicating feature originating with work,” such as “uneven pavement, an awkward or confined setting, insufficient light, distraction, [or] required pace,” contributed to cause the injury. The deputy commissioner pointed to the absence of evidence that the claimant’s act of holding his “tools and supplies[] as he moved . . . contributed to the ‘twinge’” in his left knee. He specifically noted that the claimant “did not describe the materials.” He also observed that the claimant “did not suggest they were heavy [and] add[ed] to his exertion” or that they were “cumbersome [and] increase[ed his] risk of a[] . . . misstep.” The deputy commissioner further pointed out that the claimant “characterized” his action in “stepping -8- down from the van’s rear door as simply ‘normal.’” Based on the record before him, the deputy commissioner concluded that the claimant failed to meet his evidentiary burden. On review, the Commission recognized its authority to draw reasonable inferences from the evidence, and it too concluded that the record was insufficient to permit it to infer that “any work-related risk or significant work-related exertion” caused the injury. The Commission explicitly rejected what it characterized as the claimant’s invitation to “imagine[] a person with tools in one hand and plumbing materials in the other, maneuvering out of the back of a work van by stepping down from an elevated height[,]’ thus[] creating a risk of the employment.” (Emphasis added). Based on the record before us, we hold that the Commission did not err in refusing to draw speculative inferences from the evidence and concluding that the claimant failed to meet his burden of proof. See Wiggers, 230 Va. at 159 (holding that a claimant does not meet his burden of proving an injury arose “out of” his employment through “mere[] . . . conjecture or speculation”). As explained in detail by the deputy commissioner, the record does not indicate the height of the step required to exit the van or what the claimant was carrying, and the claimant testified that his exit was “normal.” In light of the sparse record and the degree of deference owed to the Commission’s factual findings, we conclude that the Commission did not err by ruling that the claimant failed to prove that his injury arose out of his employment. Compare Haley, 54 Va. App. at 610-12 (affirming the denial of benefits because evidence that the employee did not slip or do “anything overly strenuous” while climbing stairs to his truck cab supported the Commission’s finding that he failed to meet his burden of proof), with Nurses, 49 Va. App. at 339-40, 342-44 (affirming the award of benefits because the employee’s detailed testimony and photos supported the Commission’s ruling that her fall on an unfamiliar, poorly marked wheelchair ramp arose out of her employment). -9-  III. CONCLUSION Based on the record and the applicable law, we hold that the evidence supports the Commission’s ruling that the claimant did not prove that his knee injury arose out of his employment. Consequently, we affirm the denial of benefits. Affirmed. - 10 -

2021-01-26 17:18:06.294205+00

http://www.courts.state.va.us/opinions/opncavwp/0839202.pdf

COURT OF APPEALS OF VIRGINIA Present: Judges Russell, AtLee and Senior Judge Haley UNPUBLISHED CHRISTY LEE PAYNE MEMORANDUM OPINION* v. Record No. 0839-20-2 PER CURIAM JANUARY 26, 2021 PRINCE EDWARD COUNTY DEPARTMENT OF SOCIAL SERVICES FROM THE CIRCUIT COURT OF PRINCE EDWARD COUNTY Donald C. Blessing, Judge (Ashley Ailsworth Sterling; Sterling Legal, PLLC, on brief), for appellant. (Kemper M. Beasley, III; M. Brooke Teefey, Guardian ad litem for the minor children; Teefy Law, P.C., on brief), for appellee. Christy Lee Payne (mother) appeals dispositional orders approving the removal and initial foster care plans relating to her two children, F.L.L. and G.L.L. Mother argues that the circuit court erred in finding that the children were abused or neglected because the evidence was insufficient to support a finding of abuse or neglect, nor was abuse or neglect proven by a preponderance of the evidence. Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the decision of the circuit court. See Rule 5A:27. * Pursuant to Code § 17.1-413, this opinion is not designated for publication.  BACKGROUND1 On appeal, “we view the evidence in the light most favorable to the prevailing party, in this case, the Department, and grant to it all reasonable inferences fairly deducible from the evidence.” King v. King George Dep’t of Soc. Servs., 69 Va. App. 206 , 210 (2018) (quoting C. Farrell v. Warren Cnty. Dep’t of Soc. Servs., 59 Va. App. 375 , 420-21 (2012)). In January 2020, mother became a resident at Madeline’s House shelter with her fifteen-month-old twins when her vehicle got a flat tire. On February 10, 2020, Prince Edward County Department of Social Services (the Department) received a report that the children were found unsupervised eating feces in the bathroom; the report further indicated that while the children slept, mother pinched their airways to wake them. The children were approximately sixteen months old at the time, and the family still resided at Madeline’s House. The caller was also concerned about mother’s history of homelessness, refusal of services offered to her, and mental stability. On February 11, 2020, the Department removed F.L.L. and G.L.L. from mother’s care. The Department contacted the police for assistance in the removal. When deputies arrived, they waited in an office adjacent to the room where mother, the children, and some social workers were located. At some point, mother was allowed to take the children to the bathroom to change their diapers. Mother remained in the bathroom for over twenty minutes, had locked the door, and refused to come out of the restroom. Eventually, deputies unlocked the bathroom and the 1 The record in this case was sealed. Nevertheless, the appeal necessitates unsealing relevant portions of the record to resolve the issues appellant has raised. Evidence and factual findings below that are necessary to address the assignments of error are included in this opinion. Consequently, “[t]o the extent that this opinion mentions facts found in the sealed record, we unseal only those specific facts, finding them relevant to the decision in this case. The remainder of the previously sealed record remains sealed.” Levick v. MacDougall, 294 Va. 283 , 288 n.1 (2017). -2- Department staff removed the children. Deputies detained mother, who was irate⸺kicking, screaming, and yelling—and transported her to Crossroads for evaluation. The Department filed petitions for emergency removal of the children. On February 12, 2020, the Prince Edward County Juvenile and Domestic Relations District Court (the JDR court) entered preliminary removal orders and granted the Department temporary custody of both children. The JDR court denied visitation between mother and the children. On March 4, 2020, the JDR court adjudicated that the children were abused or neglected and scheduled a dispositional hearing. The JDR court subsequently entered a dispositional order; it granted custody to the Department and approved the initial foster care plans for both children. The JDR court awarded mother visitation with the children at the discretion of the Department. Mother appealed the JDR court’s rulings to the circuit court. On June 25, 2020, the parties appeared before the circuit court. After hearing evidence and argument, the circuit court adjudicated that the children were abused and neglected and entered dispositional orders. Assistance and services had been offered to mother, but she did not avail herself to any assistance either before or after her children were removed. The circuit court found that mother did not properly supervise the children, had not availed herself of services, and had left the Commonwealth while her children remained in the Department’s custody. The circuit court transferred custody of the children to the Department and held that visitation between mother and the children would be at the discretion of the Department. The circuit court further ordered that the Department continue to make reasonable efforts in making appropriate service referrals to mother and the children to accomplish the goals set forth in the foster care plans and ordered that mother should continue to utilize her best efforts to fulfill the requirements of the foster care plans. This appeal followed. -3-  ANALYSIS “On review, ‘[a] trial court is presumed to have thoroughly weighed all the evidence, considered the statutory requirements, and made its determination based on the child’s best interests.’” Castillo v. Loudoun Cnty. Dep’t of Fam. Servs., 68 Va. App. 547 , 558 (2018) (quoting Logan v. Fairfax Cnty. Dep’t of Hum. Dev., 13 Va. App. 123 , 128 (1991)). “Where, as here, the court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it.” Fauquier Cnty. Dep’t of Soc. Servs. v. Ridgeway, 59 Va. App. 185 , 190 (2011) (quoting Martin v. Pittsylvania Cnty. Dep’t of Soc. Servs., 3 Va. App. 15 , 20 (1986)). Mother argues that the circuit court erred in finding that the evidence was sufficient to prove that F.L.L. and G.L.L. were abused or neglected. Mother also argues that the abuse and neglect were not proven by a preponderance of the evidence. Code § 16.1-228(1) defines an abused or neglected child as any child: “[w]hose parents . . . creates or inflicts, threatens to create or inflict, or allows to be created or inflicted upon such child a physical or mental injury by other than accidental means, or creates a substantial risk of death, disfigurement or impairment of bodily or mental functions.” “[T]he statutory definitions of an abused or neglected child do not require proof of actual harm or impairment having been experienced by the child.” D. Farrell v. Warren Cnty. Dep’t of Soc. Servs., 59 Va. App. 342 , 364 (2012) (quoting Jenkins, 12 Va. App. at 1183). “[T]he Code contemplates intervention . . . where ‘the child would be subjected to an imminent threat to life or health to the extent that severe or irreversible injury would be likely to result if the child were returned to or left in the custody of his parent . . . .’” Id. Proof by a preponderance of the evidence is the appropriate standard for abuse and neglect cases. See Cumbo v. Dickenson Cnty. Dep’t of Soc. Servs., 62 Va. App. 124 , 130 (2013). -4-  The record establishes that the Department became involved with the family in February 2020, but mother also had prior involvement with the Department in Virginia Beach and Henrico County. Housing and mental health services were offered to mother, but she declined everything except financial assistance. An investigation revealed that mother had a history of homelessness. Mother self-reported that she lived in different homeless shelters in California while pregnant with the children. Mother also lived with various relatives or friends during that time. At some point after the children were born, the family moved to Texas. From Texas, mother brought the family to Virginia. All records that the Department accessed indicated that mother stayed in temporary housing or homeless shelters. Mother never stayed in any location for longer than a month but estimated that she had been in five different shelters. Mother had also spent the night in her vehicle with the children more than once. Mother told a social worker that she provided her children with food, water, and shelter and did not think that her children had been removed lawfully. Mother stated that her Ford Explorer was like an RV so she could take the children around the country to stay in various parks; mother considered this arrangement to be acceptable. Mother sent the social worker photographs of the manner in which she had outfitted the vehicle to serve as accommodation. The vehicle contained a pack ‘n play in the trunk with toys, a bed with blankets and toys in the back seat, and mother planned to shower or bathe at YMCAs across the country with a nationwide membership. Mother’s vehicle did not contain car seats despite the children’s young ages. The Department presented evidence that mother often left the children unattended while at Madeline’s House. When left unattended, the children got into trash and papers, and played with small toys. Shelter staff had removed small objects from the children’s mouths, and the children were transported to the emergency room on one occasion after F.L.L. consumed feces -5- from a toilet brush. A shelter staff member also testified that she was holding the sleeping children when mother took them and pinched their noses until they gasped for air and woke up. Mother told the staff member that she did not want the children to nap so they would sleep through the night and mother could sleep that night. Mother was offered services through the shelter including parenting classes, counseling, and alternative housing; she declined all offers. Shelter staff ultimately asked mother to leave because she did not follow shelter rules. The Department referred mother to Dr. Susan Reeves of Crossroads Community Services Board for a mental health evaluation. After the evaluation, Dr. Reeves diagnosed mother with major depressive disorder with mixed features, post-traumatic stress disorder, disruption of family by separation or divorce, and problems related to other legal circumstances. Dr. Reeves testified that mother clearly was depressed and anxious and had a significant history of reported trauma. Dr. Reeves also considered future diagnoses of bipolar disorder and narcissistic personality disorder, but while mother exhibited some behaviors associated with those disorders, she did not meet the full diagnostic criteria. Dr. Reeves expressed concern over mother’s ability to take care of her children because she was concerned that mother could not care for herself. At the time of the evaluation, Dr. Reeves indicated that it was more likely that something could happen to harm the children because of mother’s circumstances. Mother testified and reported to Dr. Reeves that someone had followed her across the country. Dr. Reeves found that mother required support to parent and provide for her children in a successful manner, including the ability to provide a stable nonmobile household, a steady income, regular routine, and enhanced parenting skills. Dr. Reeves recommended supervised visitation with the children to help motivate mother to achieve those goals and thought that individual counseling would be necessary to help mother deal with her trauma. Dr. Reeves testified -6- that as of the day of the evaluation, mother could not parent the children without supervision, but if mother got the help that she needs, she could parent the children at some point in the future. When presented with the foster care plan recommendations, mother did not think she needed to complete them and was averse to any suggestions. Mother refused housing assistance because it was not for the waterfront apartment in Hopewell that she requested. After the children were removed, mother first moved to Texas, and then went back to California. Mother had no plans to return to Virginia and lived in a shelter at the time of the circuit court hearing. When asked why she left Virginia, mother stated that she did not like the culture in Virginia and did not feel that the Department’s actions were in her children’s best interests. Mother’s argument to the contrary notwithstanding, the record supports the circuit court’s findings that the children were abused and neglected because they faced an “imminent threat to life or health” if they remained in mother’s custody. Code § 16.1-228(1). Mother left the children unsupervised on numerous occasions. The lack of supervision resulted in one child consuming feces off a toilet brush on one occasion. More generally, both children accessed trash, with all the hazards attendant to such circumstances. In addition, shelter staff at Madeline’s House had to remove small objects from the children’s mouths because of mother’s inattentiveness. Mother repeatedly declined all offered services, including housing assistance, parenting classes, and counseling. Mother’s mental health evaluation indicated that until mother’s circumstances changed, she could not safely parent the children. Most importantly, mother left Virginia while the children remained in the Department’s care rather than avail herself of services to regain custody of her children. Thus, the record supports, by a preponderance of the evidence, the trial court’s conclusion that the children were abused or neglected. -7-  CONCLUSION For the foregoing reasons, the circuit court’s ruling is summarily affirmed. Rule 5A:27. Affirmed. -8-

2021-01-26 17:18:07.640104+00

http://www.courts.state.va.us/opinions/opncavwp/0043203.pdf

COURT OF APPEALS OF VIRGINIA Present: Chief Judge Decker, Judges Beales and Huff UNPUBLISHED Argued by videoconference ANTHONY ANDRE’S MACKEY MEMORANDUM OPINION* BY v. Record No. 0043-20-3 CHIEF JUDGE MARLA GRAFF DECKER JANUARY 26, 2021 COMMONWEALTH OF VIRGINIA FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY Edward K. Stein, Judge Charles S. Moore (Law Offices of John C. Singleton, on briefs), for appellant. Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellee. Anthony Andre’s Mackey appeals his conviction for using a communications system to solicit a minor for sexual activity in violation of Code § 18.2-374.3(D). The appellant failed to timely file the transcripts or statement of facts necessary to the appeal pursuant to Rule 5A:8. As a result, we cannot reach his assignments of error. Consequently, we affirm the conviction. * Pursuant to Code § 17.1-413, this opinion is not designated for publication.  I. BACKGROUND1 The appellant was charged with using a communications system to solicit sexual activity from a minor whom he had reason to believe was under fifteen years of age while he was at least seven years older. See Code § 18.2-374.3(C). Following the appellant’s bench trial, the court convicted him of using a communications system to solicit a minor at least fifteen years old but younger than eighteen for sexual activity in violation of Code § 18.2-374.3(D). After the conviction, the appellant filed a motion to reconsider. In that motion, he argued that the “crime of using a communications system to knowingly solicit a child between the ages of 15 and 18 is not a lessor [sic] included offense . . . [of] knowingly soliciting a child under the age of 15.” On December 2, 2019, before ruling on the motion, the trial court held the sentencing hearing. The court sentenced the appellant to ten years of incarceration, suspending eight years and six months of that time. It entered the sentencing order on December 5, 2019. On December 19, 2019, the court held a hearing on the motion to reconsider and denied it. The appellant noted this appeal challenging the sufficiency of the evidence to support his conviction and the denial of his motion to reconsider. The parties filed briefs addressing these issues. Subsequently, upon direction from this Court, the parties filed additional briefs addressing the timeliness of the transcripts and whether they are indispensable for consideration of the assignments of error. 1 In accordance with familiar principles of appellate review, we recite the facts in the light most favorable to the Commonwealth, as the prevailing party at trial. See Hillman v. Commonwealth, 68 Va. App. 585 , 592 (2018). -2-  II. ANALYSIS Rule 5A:8(a) requires that for a transcript to be part of the record on appeal, it must be “filed in the office of the clerk of the trial court no later than [sixty] days after entry of the final judgment.” Alternatively, an appellant may submit a written statement of facts in lieu of a transcript in compliance with Rule 5A:8(c). If the appellant fails to “ensure that the record contains transcripts or a written statement of facts necessary to permit resolution of appellate issues, any assignments of error affected by such omission shall not be considered.” Rule 5A:8(b)(4)(ii). We first address what constituted the final judgment in order to determine when it was entered and the date from which the sixty days is counted. A judgment is final if it “disposes of the whole subject, gives all the relief contemplated, provides with reasonable completeness for giving effect to the sentence, and leaves nothing to be done in the cause save to superintend ministerially the execution of the order.” Prizzia v. Prizzia, 45 Va. App. 280 , 285 (2005) (quoting James v. James, 263 Va. 474 , 481 (2002)). Generally, a sentencing order is considered a final order or final judgment. See, e.g., Jefferson v. Commonwealth, 298 Va. 473 , 475-76 (2020). In this case, the sentencing order, by its terms, did not contemplate any further proceedings and left nothing more to be done. Cf. de Haan v. de Haan, 54 Va. App. 428 , 437 (2009) (“Orders retaining ‘jurisdiction to reconsider the judgment or to address other matters still pending in the action’ lack finality.” (quoting Super Fresh Foods Mkts. of Va. v. Ruffin, 263 Va. 555 , 561 (2002))). Therefore, the sentencing order constitutes the final judgment. See Richardson v. Commonwealth, 67 Va. App. 436 , 446 (2017) (“‘A court speaks only through its orders,’ and our interpretation of these orders is limited to their own language.” (citations omitted) (quoting Cunningham v. Smith, 205 Va. 205 , 208 (1964))). -3-  The trial court entered the appellant’s sentencing order on December 5, 2019. Accordingly, based on the sixty-day window given by Rule 5A:8, the transcripts were due by February 3, 2020. The court did not enter an order suspending or vacating the sentencing order. Consequently, it remained the final order with no restrictions. See Rule 1:1(b) (defining “final” “judgment, order or decree”). The fact that the trial court conducted a hearing to consider the appellant’s post-trial motion to reconsider after entering the sentencing order and ultimately entered an order on January 6, 2020, denying that motion did not extend his deadline for filing the transcripts. As a result, the sixty-day window under Rule 5A:8 began to run on December 5, 2019, and the transcripts were due by February 3, 2020. Neither a transcript nor a statement of facts in lieu of a transcript was filed by that date. Instead, the transcripts were filed eleven days later on February 14, 2020. Despite the finality of the order on its face, the appellant suggests that because the parties and the trial court planned to address the motion to reconsider after sentencing, the sentencing order left something to be done. He concludes that therefore it was not a final judgment. In analyzing this argument, it is useful to consider Rule 1:1(a), which provides that a trial court retains jurisdiction over a case for twenty-one days after final judgment in the case. The Supreme Court of Virginia has made clear that “[n]either the filing of post-trial or post-judgment motions, nor the court’s taking such motions under consideration, nor the pendency of such motions on the twenty-first day after final judgment is sufficient to toll or extend the running of the 21-day period prescribed by Rule 1:1.” School Bd. v. Caudill Rowlett Scott, Inc., 237 Va. 550 , 556 (1989) (citations omitted). Under Caudill, a post-trial motion for reconsideration does not defeat the finality of the sentencing order if that order does not expressly retain jurisdiction to consider the motion or otherwise indicate that it is not final. See Wells v. Shenandoah Valley -4- Dep’t of Soc. Servs., 56 Va. App. 208 , 213 (2010) (holding that the finality of the judgment was not affected by a pending motion to reconsider when the “circuit court did not purport to take any action whatsoever to modify, vacate or suspend” the final order before ruling on the motion). We recognize, as the appellant points out, that the motion to reconsider remained pending at the time of the entry of the sentencing order. Nonetheless, the appellant asks this Court to look beyond the sentencing order. We do not do so because in this case we are bound by the axioms that a “‘court speaks only through its orders’” and this Court’s “interpretation of these orders is limited to their own language.” See Richardson, 67 Va. App. at 446 (quoting Cunningham, 205 Va. at 208 ). Accordingly, the appellant’s pending post-trial motion for reconsideration did not affect the finality of the sentencing order, which by its very words left nothing else to be decided and was not suspended or vacated. For these reasons, the sentencing order in this case was the final judgment. Because the transcripts were not filed within sixty days of the final judgment, they are not timely and are not part of the record on appeal.2 We turn next to whether a transcript or a statement of facts is indispensable in addressing the assignments of error. See generally Rule 5A:8(b)(4)(ii) (providing that if the record does not “contain[] transcripts or a written statement of facts necessary to permit resolution of appellate issues, any assignments of error affected by such omission shall not be considered”); Dixon v. Dixon, 71 Va. App. 709 , 716 (2020) (holding that the transcript was indispensable to resolving two assignments of error). The appellant presents the following assignments of error on appeal: [I.] That the trial judge erred in denying [the] appellant’s motion to strike the Commonwealth’s evidence, finding [the appellant] guilty, and overruling [the] appellant’s motion to reconsider when 2 Rule 5A:8(a) allows for an extension of the transcript deadline by this Court when good cause is shown if the appellant files a written motion within ninety days “after the entry of final judgment.” See LaCava v. Commonwealth, 283 Va. 465 , 468 (2012). However, the appellant did not file such a motion. -5-  the evidence did not support the allegation in the indictment regarding [the] age of the victim. [II.] That the evidence was not sufficient to support [the] appellant’s conviction. The assignments of error challenge the sufficiency of the Commonwealth’s evidence regarding the victim’s age and the appellant’s knowledge thereof. It is axiomatic that this Court’s scope of appellate review is limited to the assignments of error. See Rule 5A:12(c)(1)(i) (“Only assignments of error assigned in the petition for appeal will be noticed by this Court.”).3 The record properly before us does not contain any evidence regarding the victim’s age at the time of the offense. We hold that a timely-filed transcript or a written statement of facts in lieu of a transcript is indispensable to a determination of the appellant’s assignments of error. See Smith v. Commonwealth, 32 Va. App. 766 , 772 (2000); Turner v. Commonwealth, 2 Va. App. 96 , 99-100 (1986). The appellant failed to ensure that the record contains the material necessary to permit the Court to resolve the assignments of error he presents on appeal. See Rule 5A:8(b)(4)(ii). Therefore, we cannot consider them and affirm the appellant’s conviction. See Browning v. Browning, 68 Va. App. 19 , 30 (2017) (holding that a Rule 5A:8 error requires affirmance rather than dismissal because it is non-jurisdictional). 3 Assuming without deciding that the assignments of error also include a fatal variance or lesser-included offense challenge, we nonetheless conclude that the transcripts are indispensable to resolution of these issues. Without a timely-filed trial transcript, this Court is unable to determine whether these arguments were preserved for appeal. See Code § 19.2-227 (providing that a conviction cannot be overturned for a non-constitutional error in an indictment if the objection was first made after the verdict was rendered); Rule 5A:18 (requiring a contemporaneous objection); Rowe v. Commonwealth, 277 Va. 495 , 501-02 (2009) (holding that the defendant waived his lesser-included offense challenge by inviting the alleged error); Gomez v. Commonwealth, 72 Va. App. 173 , 179 (2020) (holding that a fatal variance challenge made after the guilty verdict was too late under Code § 19.2-227). -6-  III. CONCLUSION The appellant’s failure to timely file the transcripts precludes us from considering his appeal. Consequently, we affirm the conviction.4 Affirmed. 4 We recognize that the appellant has the right to file a motion in this Court for leave to pursue a delayed appeal, pursuant to Code § 19.2-321.1. -7-

2021-01-26 17:18:08.105778+00

http://www.courts.state.va.us/opinions/opncavwp/0162204.pdf

COURT OF APPEALS OF VIRGINIA Present: Judges Huff, AtLee and Athey UNPUBLISHED Argued by videoconference THOMAS KHALED MAAD MEMORANDUM OPINION* BY v. Record No. 0162-20-4 JUDGE RICHARD Y. ATLEE, JR. JANUARY 19, 2021 COMMONWEALTH OF VIRGINIA FROM THE CIRCUIT COURT OF FREDERICK COUNTY Brian M. Madden, Judge Jason E. Ransom for appellant. Sharon M. Carr, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee. Thomas Khaled Maad was convicted, after a jury trial, of two counts of obtaining money by false pretenses in violation of Code § 18.2-178 and one count of embezzlement in violation of Code §§ 18.2-95 and 18.2-111. On appeal, Maad argues that the evidence was insufficient to support his convictions for obtaining money by false pretenses because the evidence did not prove that he made a false representation as to a past or existing fact. He also argues that the evidence did not demonstrate that he had an intent to defraud. We disagree and affirm. I. BACKGROUND “In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial.” Gerald v. Commonwealth, 295 Va. 469 , 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380 , 381 (2016)). * Pursuant to Code § 17.1-413, this opinion is not designated for publication.  So viewed, the facts show that Maad owned and operated GoldStar Motor Company (“GoldStar”), located in Frederick County, from February 2007, until it closed in early 2019. In 2016, Maad’s business started experiencing financial difficulties. Over the next two years, Maad continued to operate, contributing $380,000 from his retirement accounts and life insurance policies. He also asked Pinnacle Financial Group (“Pinnacle”) to further extend his line of credit. Tim Clark, a special agent with the Virginia Department of Motor Vehicles (“DMV”), met with Maad in February 2018, to investigate a complaint. During their meeting, Maad admitted to Clark that he had approximately seventy customers who did not have titles to the vehicles they had purchased. Clark advised Maad about the applicable laws regarding selling and titling vehicles. Clark testified at trial that a car dealer has thirty days to obtain a title for a sold vehicle and may request an additional sixty days, in thirty-day increments, if there are problems in obtaining a title from a lien holder. If there is a delay in obtaining the title, the DMV creates a “title held record” until the title is received, and the buyer of the vehicle cannot retitle the vehicle until the issue is resolved. On June 28, 2018, Ethan Caldwell traded in his 2012 Ford F-150 pickup truck to GoldStar and purchased a 2011 Honda Odyssey for $17,527.28, including sales tax and licensing fees. Caldwell made a down payment and financed the remaining $16,500. Caldwell still owed T.D. Auto Financing $21,000 for the pickup, and, as part of the deal, Maad promised to pay off the loan on the pickup and transfer title of the Odyssey to Caldwell. Caldwell testified that he expected GoldStar to pay the sales tax and registration fees. Within a couple of months, Caldwell received notices from T.D. Auto Financing about past due payments owed on the pickup. Caldwell contacted Maad and asked him about paying off the loan. Maad said that he was going to pay it off, but he only made one payment of $2,000. -2- Caldwell continued to call Maad, who did not answer the calls and instead responded by text message. As of October 1, 2019, Maad still had not paid off the loan, and the amount owed on the loan was $20,017.20. Additionally, Maad never provided Caldwell with title to the Odyssey. Though Maad had acquired the Odyssey from another car dealer, he never got the title from the dealer. The DMV record listed the Odyssey under “title held” status, and, as of three days before Maad’s trial, Caldwell still had not received the title for it. Zachary Shiley visited GoldStar on July 14, 2018. He traded in his 2011 Jeep Liberty and purchased a 2012 Ford F-150, the same one Caldwell had just traded in. As part of the trade-in of the Jeep, Maad promised to pay off the remaining $6,200 that Shiley owed on the Jeep, but he did not do so. Shiley testified that the “repossession man” came to his house twice to repossess the Jeep for nonpayment. When Shiley contacted GoldStar about these issues, he never received a “reliable response” and got the “run-around” from GoldStar employees. Despite Maad’s promise that he could transfer clear title for the pickup, he did not initiate the process to transfer title to Shiley. According to the DMV record, the pickup was still registered to Caldwell and had a lien on the title. Moreover, as of two days before the trial, Maad still had not paid the sales tax and licensing fees as required by the Buyer’s Order. On October 6, 2018, Madison Pugh purchased a 2009 Jeep Wrangler1 from GoldStar for $18,625, which included $1,098.48 in sales tax and licensing fees. She traded in her 2016 Dodge Dart, on which she still owed $8,900, with the understanding that Maad would pay off the remainder of that loan. When Pugh discovered that the loan had not been paid, she contacted GoldStar and one of Maad’s employees told her that they were working on it. The next week, 1 At trial, Jeffery Gay testified that he had traded in his truck and purchased the 2009 Jeep Wrangler from GoldStar in April or May 2018. After Maad failed to pay off the loan on Gay’s truck as agreed, Gay returned the Jeep to GoldStar in exchange for the return of his truck. -3- the employee told Pugh that the check had been sent, but as of the date of trial, the loan was still unpaid, and the Dodge Dart had been repossessed from Maad’s lot. Pugh testified that she was told her license plates would be transferred from the Dodge to the Jeep, and she paid fees to cover those expenses. Because Maad did not submit the taxes and fees to the DMV, Pugh had to repay those fees a second time. In fact, Maad did not even start the process to transfer title to the Jeep to Pugh. Ultimately Maad closed his business. Shortly thereafter, Maad was arrested, and his trial commenced on November 14, 2019. Maad testified on his own behalf. He explained that he never intended to “rip off” Caldwell, Shiley, or Pugh. He testified that his business catered to individuals who could only make low down payments on the vehicle they sought to purchase or those with low credit scores, and GoldStar would often finance vehicle loans when financial institutions refused. This resulted in GoldStar owing more and more money. Maad knew that GoldStar was having “real problems” since 2016, but he explained that he expected Pinnacle to increase his line of credit as it had at other times when he had cash flow issues. He admitted that he did not use the money from selling vehicles to Caldwell, Shiley, or Pugh to pay off the loans on the vehicles they traded in because he used the money for his “most pressing” obligations. He also admitted that when he sold the F-150 pickup to Shiley, he knew that he would not be able to give clear title to the pickup. Maad testified that he relied on DMV Investigator Clark’s representations that “when he close[d] down, [the DMV] would take care of the customers.” Maad filed a motion to strike. He argued that the evidence was insufficient to support the charges that he obtained money by false pretenses because the statute requires a false representation of past or existing fact and his promises to pay off the loans on the trade-in vehicles were merely statements of future intentions. He also argued that the evidence was insufficient to support both his obtaining money by false pretenses convictions and his -4- embezzlement conviction because the evidence did not prove that he intended to defraud any of the customers. The trial court denied the motion to strike, and the jury found Maad guilty on all three charges. The trial court also denied Maad’s motion to set aside the verdict, and Maad now appeals to this Court. II. ANALYSIS Maad argues that the evidence is insufficient to support his convictions. “When the sufficiency of the evidence is challenged on appeal, we must ‘“examine the evidence that supports the conviction and allow the conviction to stand unless it is plainly wrong or without evidence to support it.”’” Austin v. Commonwealth, 60 Va. App. 60 , 65 (2012) (quoting Commonwealth v. McNeal, 282 Va. 16 , 20 (2011)). We review the evidence in the light most favorable to the Commonwealth, as the prevailing party below, Gerald, 295 Va. at 472, and we determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,” Reid v. Commonwealth, 65 Va. App. 745 , 753 (2016) (quoting Ervin v. Commonwealth, 57 Va. App. 495 , 502 (2011)). “If there is evidence to support the conviction, we may not substitute our judgment, even if our conclusions of fact differ from the conclusions reached by the fact-finder at trial.” Austin, 60 Va. App. at 65-66. A. False Pretenses Code § 18.2-178(A) provides that “[i]f any person obtain, by any false pretense or token, from any person, with intent to defraud, money . . . or other property that may be the subject of larceny, he shall be deemed guilty of larceny thereof . . . .” To support a conviction of obtaining money by false pretenses, “the Commonwealth must prove: (a) that the accused intended to defraud; (b) that a fraud actually occurred; (c) that the accused used false pretenses to perpetuate the fraud; and (d) that the false pretenses induced the owner to part with his property.” Reid, 65 Va. App. at 748-49 (quoting Wynne v. Commonwealth, 18 Va. App. 459 , 460 (1994)). -5-  “A criminal false pretense has been defined to be ‘the false representation of a past or existing fact, whether by oral or written words or conduct, which is calculated to deceive, intended to deceive, and does in fact deceive . . . .” Hubbard v. Commonwealth, 201 Va. 61 , 66 (1959). “[T]he false pretense must be a representation as to an existing fact or past event.” Id. False representations amounting to mere promises or statements of intention have reference to future events and are not criminal within the statute, even though they induce the party defrauded to part with his property. But if false representations are made, some of which refer to existing facts or past events, while others refer solely to future events, a conviction may be had if it is shown that any of the representations as to existing facts induced the complaining witness to part with his property. Holt v. Commonwealth, 66 Va. App. 199 , 209 (2016) (en banc) (quoting Parker v. Commonwealth, 275 Va. 150 , 154 (2008)). Maad argues that the Commonwealth failed to prove that he made a false representation of an existing fact or past event. He contends that his promise to pay off the loans on the vehicles Caldwell, Shiley and Pugh traded in, even if false, was a promise or reference to a future event, and therefore, was insufficient to support his convictions. Maad is correct that his promise to pay off Shiley’s and Pugh’s loans on the vehicles they traded in is not a false representation under Code § 18.2-178(A). But Maad made other false representations in reference to existing facts or past events by stating that he could provide clear titles for the vehicles that they purchased. He admitted that he knew at the time that he sold the F-150 pickup to Shiley that he could not transfer him clear title because he had not paid off T.D. Auto’s lien on the pickup. Furthermore, he was aware of GoldStar’s financial difficulties and knew he would not be able to pay the lien off and transfer clear title without some sort of outside intervention. Likewise, the Jeep remained titled in Gay’s name, and no effort had been made to attempt to transfer title, and thus Maad was unable to give Pugh title to the Jeep. Both Shiley -6- and Pugh testified that they would not have purchased vehicles if they knew Maad could not transfer them clear title. Maad made several false representations. Though some referred solely to future events or statements of intentions, others referred to existing facts or past events. Accordingly, because some of “the representations as to existing facts induced the complaining witness[es] to part with [their] property,” the evidence is sufficient to support a conviction. Holt, 66 Va. App. at 209. B. Intend to Defraud Madd also argues that the evidence was not sufficient to prove that he had an intent to defraud and therefore the evidence is insufficient to sustain both his obtaining money by false pretenses convictions and his embezzlement conviction. To convict Maad of obtaining money by false pretenses, the Commonwealth must prove that an intent to defraud existed at the time the false pretenses were made. Riegert v. Commonwealth, 218 Va. 511 , 518 (1977). To convict Maad of embezzlement, the Commonwealth must prove that he “wrongfully and fraudulently use[d], dispose[d] of, conceal[ed] or embezzle[d] any money . . . personal property . . . which he shall have received for another . . . or which shall have been . . . entrusted or delivered to him by another . . . .” Code § 18.2-111 (emphasis added). In order to determine whether an intent to defraud existed, “the conduct and representations of the accused must be examined, since intent is ‘a secret operation of the mind.’” Riegert, 218 Va. at 519 (quoting Trogdon v. Commonwealth, 72 Va. (31 Gratt.) 862 , 872 (1878)). “Intent may, and most often must, be proven by circumstantial evidence and the reasonable inferences to be drawn from proven facts are within the province of the trier of fact.” Fleming v. Commonwealth, 13 Va. App. 349 , 353 (1991). -7-  The evidence is sufficient for a rational fact finder to conclude that Maad did intend to defraud Caldwell, Shiley, and Pugh. Code § 46.2-617 prohibits selling a vehicle without having title to it. Prior to all three sales, Maad admitted to DMV Investigator Clark that he had seventy customers without title to vehicles they had purchased. Clark explained to him the applicable law regarding the proper way to sell and title vehicles. Despite that, Maad continued to sell vehicles to which he did not have, and could not get, clear title. Furthermore, Maad did not take any steps to initiate the process of transferring title to Pugh or Shiley, nor did he request more time from the DMV to get the titles. Although the Buyer’s Orders required Maad to pay the sales tax and licensing fees, and he collected money for that purpose, he did not remit that money to the DMV. He also testified that he had no intention of using those funds to do so because all the money coming in was destined for his “most pressing” obligations. Likewise, when Maad sold the pickup that Caldwell traded in, he did not pay off Caldwell’s loan. Rather, he used the proceeds to fund other parts of his car business. Maad had a pattern of doing the same thing to multiple customers. See Austin, 60 Va. App. at 67 (“[E]vidence that the accused ‘perpetuated more than one fraud [at] about the same time is relevant to show his fraudulent intent.’” (second alteration in original) (quoting Mughrabi v. Commonwealth, 38 Va. App. 538 , 546 (2002))). When those customers attempted to contact him and find out what was going on, he avoided phone calls and gave unreliable answers. Pugh was even falsely told that her loan had been paid off. Evasive conduct “and a general lack of communication with the victims about any problems” are probative of fraudulent intent. Id. Maad contends that this evidence did not exclude the reasonable hypothesis of innocence that he had simply made bad business decisions without intending to defraud anyone. But his argument is based on information presented in his testimony. The jury, as fact finder, was -8- entitled to accept or reject his testimony in whole or in part and could “conclude that [Maad was] lying to conceal his guilt.” Speller v. Commonwealth, 69 Va. App. 378 , 388 (2018). “Determining the credibility of the witnesses . . . is within the exclusive province of the jury, which has the unique opportunity to observe the demeanor of the witnesses as they testify.” Dalton v. Commonwealth, 64 Va. App. 512 , 525 (2015) (alteration in original) (quoting Lea v. Commonwealth, 16 Va. App. 300 , 304 (1993)). Here, the jury plainly rejected Maad’s explanation of events and resolved the credibility issues in favor of the Commonwealth. Accordingly, we conclude that the evidence was sufficient to allow the jury to conclude that Maad intended to defraud. III. CONCLUSION Because we conclude that the evidence was sufficient to demonstrate that Maad made false representations as to past or existing facts and he had an intent to defraud, we find the evidence sufficient to sustain his convictions. Accordingly, we affirm. Affirmed. -9-

2021-01-26 17:18:16.697801+00

http://www.courts.state.va.us/opinions/opncavwp/1971191.pdf

COURT OF APPEALS OF VIRGINIA Present: Judges Beales, Malveaux and Senior Judge Clements PUBLISHED Argued by teleconference SHAKA MARKEL LONG OPINION BY v. Record No. 1971-19-1 JUDGE RANDOLPH A. BEALES JANUARY 26, 2021 COMMONWEALTH OF VIRGINIA FROM THE CIRCUIT COURT OF YORK COUNTY Richard H. Rizk, Judge Michael A. Hyman (Collins & Hyman, on brief), for appellant. Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee. Appellant Shaka Markel Long was convicted in the Circuit Court of York County of transporting a Schedule I/II controlled substance into the Commonwealth, possession with intent to distribute a Schedule I/II controlled substance, possession with intent to distribute marijuana, and conspiracy to distribute a Schedule I/II controlled substance. Long was convicted upon a conditional guilty plea that preserved his right to appeal the circuit court’s denial of his motion to suppress. In this appeal, he argues that the circuit court erred in allowing testimony to be admitted at the suppression hearing regarding information “obtained from informants over the defense’s objection.” Furthermore, he argues that the circuit court “erred in overruling and denying Appellant’s Motion to Suppress.” I. BACKGROUND “In accordance with established principles of appellate review, we view the ‘evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court.’” Bryant v. Commonwealth, 72 Va. App. 179 , 182 (2020) (quoting Riner v. Commonwealth,  268 Va. 296 , 330 (2004)). As we must for the same reason, “[w]e also accord the Commonwealth the benefit of all inferences fairly deducible from the evidence.” Id. (quoting Riner, 268 Va. at 303 ). At the hearing on Long’s motion to suppress, Investigator Josh Drury of the James City County Police Department testified that he worked on a regional drug task force assigned to investigate street-level and high-profile drug cases in the greater Williamsburg area. Investigator Drury said that the task force routinely utilized undercover operations and confidential informants who would provide information helpful to the task force’s investigations. He stated that approximately “a month or so” before the events giving rise to this appeal, he began communicating with C.E., a confidential informant who was concerned about her daughter’s involvement with drugs and her daughter’s dealings with a woman named Lauren Jarrell. Investigator Drury testified that he learned from C.E. that C.E.’s daughter had overdosed in the past and sought treatment, but upon her release from rehabilitation, she came back in contact with Jarrell and began using drugs again. Investigator Drury stated that he was familiar with Jarrell, who had been listed as an “involved other or a witness” in multiple overdose cases around James City County. Investigator Drury testified that he was aware of Jarrell’s involvement in these cases and that the overdoses occurred at several different motels around the area. In addition, Investigator Drury said that he had conducted several arrest operations and “post-arrest debriefs” during which numerous targets of the task force’s investigations provided information on Jarrell. C.E. informed Investigator Drury that C.E. and her daughter shared a vehicle, a gray Honda Civic, and that both of their names were on the registration for the Honda Civic. According to C.E., the two specifically discussed that they would not let other people drive the vehicle, and C.E. was concerned that her daughter was allowing Jarrell to use the vehicle for the purpose of conducting drug transactions. Based on her suspicions, C.E. purchased a GPS tracking device and installed it in -2- the Honda Civic in order to monitor its location. She would regularly text or call Investigator Drury with information about the location of the vehicle, which information Drury corroborated by reviewing highway toll records and toll video footage. In addition, Investigator Drury verified the license plate number of the vehicle through the Virginia Department of Motor Vehicles (DMV). On February 8, 2018, around 9:30 p.m., Investigator Drury was off duty and at home when he received a call from C.E. She explained that her daughter had been arrested earlier that day and was in jail but that the GPS tracker showed that the Honda Civic was still moving around Williamsburg. C.E. told Investigator Drury that she wanted her vehicle back. She tracked the location of the vehicle using the GPS device that she had installed on it and informed Investigator Drury that the vehicle had stopped moving and was stationary at the Travel Lodge on Bypass Road in York County. Investigator Drury testified that, in his role as a member of the drug task force, he had visited the Travel Lodge roughly “[t]hirty or more times” to conduct “post-arrest debriefs” in cases involving drug transactions that took place at the Travel Lodge. Investigator Drury then drove to the Travel Lodge and arrived there approximately forty-five minutes after he received the call from C.E. Upon entering the parking lot, Drury saw a gray Honda Civic. The license plate of the Honda Civic matched the license plate that Investigator Drury had previously verified through DMV. As he drove past it in his unmarked car, Investigator Drury said that he noticed that the driver’s seat of the Honda Civic was empty, although there was a woman seated in the passenger’s seat. Next to the Honda Civic, Investigator Drury observed a black Dodge Durango with North Carolina license plates. There were two people in the Durango – one in the driver’s seat and one in the passenger’s seat. Investigator Drury testified that Long was seated in the driver’s seat, “and then -3- who I suspected to be Lauren Jarrell[,] based on DMV photos and Lin[x]1 photos[,] seated in the passenger’s seat of that Durango.” Investigator Drury said he then proceeded farther into the parking lot and parked his vehicle so that he could continue his surveillance. From his position of surveillance, he observed Long and Jarrell sitting in the vehicle talking to each other, with neither party exiting the vehicle or going inside the Travel Lodge. Because he was off duty, in plain clothes, and in an unmarked vehicle, Investigator Drury did not intend to engage the parties directly. Instead, he testified that he “wanted to just stay off to the side covertly to observe in the event that [he] needed to continue surveillance or tail the vehicles to another location.” Consequently, he placed a call to the York County Sheriff’s Office dispatch “and asked them to just stop out with the suspicious occupied vehicle in the parking lot.” 2 Investigator Drury “didn’t really give the dispatcher a whole lot of information as to [the] case” or as to the details of the investigation, but informed the dispatcher that he was off duty, on the scene, and maintaining surveillance. Deputy Wesley Simms of the York County Sheriff’s Office was dispatched to the Travel Lodge in response to the call from Investigator Drury. Deputy Simms testified that, when he arrived at the Travel Lodge, he saw the Honda Civic and Dodge Durango. He stated that he parked approximately two vehicles away from the Durango and activated the emergency lights on his police cruiser. After turning on his emergency lights, Deputy Simms said that he approached the passenger’s side of the Durango and made contact with Jarrell, who was still seated in the 1 “LInX” refers to the “Law Enforcement Information Exchange,” an “information sharing system and analytical data warehouse containing information from participating state and local law enforcement agencies located within the [] regional LInX system.” See https://www.linxnc.us/Linx/WebHelp/Overview.htm (last visited Jan. 22, 2021). 2 When asked at the suppression hearing what he meant by the phrase “stop out,” Investigator Drury testified, “Well, in my mind – I don’t know that I rela[ye]d this to dispatch thoroughly, but in my mind, I wanted them to make consensual contact with the suspicious occupied vehicle in the parking lot.” -4- passenger’s seat. Ultimately, the stop led Deputy Simms to discover physical evidence that caused Long to be charged with transporting a Schedule I/II controlled substance into the Commonwealth, possession with intent to distribute a Schedule I/II controlled substance, possession with intent to distribute marijuana, and conspiracy to distribute a Schedule I/II controlled substance. Long moved to suppress the evidence obtained by Deputy Simms, arguing that Deputy Simms’s stop of the Durango violated the Fourth Amendment. At the suppression hearing, the Commonwealth elicited testimony from Investigator Drury to explain the basis for his call to the York County Sheriff’s Office dispatch asking for someone to “stop out with the suspicious occupied vehicle in the parking lot.” When Investigator Drury began explaining the statements C.E. made to Drury prior to and during the phone call on February 8, Long objected “on foundation grounds,” arguing that the Commonwealth had not established “where this information is coming from and if it’s reliable.” The trial judge asked, “So your objection is hearsay for the purposes of reliability and what this officer does next?” Long replied that “[i]t was a foundation objection” because “I don’t know where that information is coming from and if it’s a reliable source that provided that information or if it’s just hearsay here on the streets.” The Commonwealth responded that C.E.’s statements were reliable because Investigator Drury corroborated the information that C.E. provided. Furthermore, the Commonwealth maintained that the statements were not offered for their truth, but instead were offered to show the effect the statements had on Investigator Drury and to explain his actions in driving to the motel and then requesting a “stop out.” The trial court overruled the objection. In his closing argument, Long urged the trial court to grant his motion to suppress on the ground that Investigator Drury lacked a reasonable, articulable suspicion to conduct an investigatory stop. Specifically, Long claimed that Investigator Drury acted upon a mere hunch of criminal activity and that his call to dispatch was unsupported by a reasonable suspicion that the occupants of -5- the Durango were engaged in any criminal activity. He also argued that, even assuming Investigator Drury had a reasonable, articulable suspicion of criminal activity, Drury’s knowledge could not be imputed to Deputy Simms under the “collective knowledge” doctrine. Long claimed that the collective knowledge doctrine did not permit the trial court to impute Investigator Drury’s knowledge to Deputy Simms because Investigator Drury did not sufficiently communicate the facts he relied upon in requesting a “stop out.” In addition, Long asserted that the collective knowledge doctrine could not be used to justify the stop because Deputy Simms exceeded the scope of the instructions given to him by Investigator Drury. He argued that Investigator Drury intended for the responding officer to initiate a consensual encounter because he was “not saying go stop them,” but rather “[j]ust go up consensually and see what they’re doing,” so the trial court could not use the collective knowledge doctrine to justify an action beyond the scope of Investigator Drury’s instructions and “make it bigger than what it is.” The trial court rejected these arguments and denied the motion to suppress. Long subsequently entered into a conditional guilty plea, which preserved his right to appeal the denial of his motion to suppress. This appeal followed. II. ANALYSIS A. Investigator Drury’s Testimony at the Suppression Hearing In his first assignment of error, Long argues that the trial court “erred in allowing Investigator Drury to testify about information he obtained from informants over the defense’s objection.” Specifically, he contends that the trial court erred in allowing Investigator Drury to testify about the statements C.E. made to him prior to and during the phone call on the evening of February 8, 2018. In his brief to this Court, citing Giles v. Commonwealth, 32 Va. App. 519 (2000), Long argues that “[t]o provide reasonable suspicion, either the informant or the information given must exhibit ‘sufficient indicia of reliability.’” He claims that in this case, “there is -6- insufficient independent corroboration of the information provided by the informant,” and, therefore, “the information is unreliable and should have been deemed inadmissible.” Long’s argument that the information obtained from C.E. should have been deemed inadmissible because it was unreliable is based on a flawed premise. In Giles, this Court addressed the question of whether an informant’s tip could provide sufficient evidence of a reasonable, articulable suspicion to justify an investigatory stop. Giles, 32 Va. App. at 523. The Court concluded that “[t]o provide reasonable suspicion, either the informant or the information given must exhibit ‘sufficient indicia of reliability.’” Id. (quoting Alabama v. White, 496 U.S. 325 , 326-27 (1990)). As the quoted excerpt from Giles makes clear, information obtained from an informant must be reliable to be sufficient to establish a reasonable, articulable suspicion of criminal activity. See id. The Court in Giles did not hold that information obtained from an informant must be reliable to be even admissible at a suppression hearing. Therefore, Long’s reliance on Giles is misplaced. Any doubt as to the reliability of the statements C.E. made to Investigator Drury raises an issue of the weight to be given those statements by the finder of fact – not an issue of admissibility. See, e.g., Sandoval v. Commonwealth, 20 Va. App. 133 , 138 (1995) (“The credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented.”). In addition, the record before us leaves no doubt that the information Investigator Drury obtained from C.E. was, in fact, reliable. Investigator Drury began working with C.E. approximately “a month or so” before the phone call on February 8 – which distinguishes C.E. from an unknown, anonymous tipster. Furthermore, Drury independently corroborated the information he obtained from C.E. through his own observations and through his experience working on the task force’s investigations. For example, he was aware at the time of the phone call that C.E. regularly tracked the Honda Civic’s location by using the GPS tracking device she had installed in the -7- vehicle. He knew that she purchased and installed this device based on her suspicion that Jarrell was using the vehicle to facilitate illegal drug transactions. He had previously verified the vehicle location information provided by C.E. by reviewing toll records and toll video footage. He confirmed the license plate number that C.E. provided by verifying it through the Virginia DMV. Furthermore, after C.E.’s phone call on the night of February 8, 2018, he found the Honda Civic in the parking lot of the Travel Lodge on Bypass Road – the exact location where C.E. told him it would be. In addition, after C.E. reported that her daughter was in jail, that her car was missing, and that she suspected Jarrell was driving the vehicle, Investigator Drury recognized Jarrell sitting in the passenger’s seat of the Durango parked next to the Honda Civic, with its driver’s seat empty. Based on Investigator Drury’s independent corroboration of the information he obtained from C.E. prior to and during the phone call on February 8, it is clear that the information provided by C.E. was, in fact, reliable. For these reasons, we find no error in the trial court’s decision to allow Investigator Drury to testify as to the information he obtained from C.E. during the phone call on February 8 and during the month-long working relationship they had developed prior to the February 8 call. B. Denial of Long’s Motion to Suppress Long next argues that the trial court “erred in overruling and denying Appellant’s Motion to Suppress.” First, he argues that Investigator Drury acted upon a mere hunch of criminal activity and that Drury’s request for a “stop out” was unsupported by a particularized and objective basis for suspecting that the occupants of the Durango were engaged in any criminal activity. Second, he argues that, even assuming Investigator Drury had a reasonable, articulable suspicion, his knowledge could not be imputed to Deputy Simms under the “collective knowledge” doctrine. “When challenging the denial of a motion to suppress evidence on appeal, the defendant bears the burden of establishing that reversible error occurred.” Edmond v. Commonwealth, 66 -8- Va. App. 490, 498 (2016). While we are bound to review de novo the ultimate questions of reasonable suspicion and probable cause, we “review findings of historical fact only for clear error3 and . . . give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” Ornelas v. United States, 517 U.S. 690 , 699 (1996) (footnote added). 1. Investigator Drury’s Reasonable, Articulable Suspicion The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. “If a police officer has reasonable, articulable suspicion that a person is engaging in, or is about to engage in, criminal activity, the officer may detain the suspect to conduct a brief investigation without violating the person’s Fourth Amendment protection against unreasonable searches and seizures.” McGee v. Commonwealth, 25 Va. App. 193 , 202 (1997) (en banc). A reasonable, articulable suspicion is “‘a particularized and objective basis’ for suspecting the person stopped of criminal activity.” Ornelas, 517 U.S. at 696 (quoting United States v. Cortez, 449 U.S. 411 , 417-18 (1981)). However, “[t]here is no ‘litmus test’ for reasonable suspicion. Each instance of police conduct must be judged for reasonableness in light of the particular circumstances.” Castaneda v. Commonwealth, 7 Va. App. 574 , 580 (1992) (citing Terry v. Ohio, 392 U.S. 1 , 21 (1968)). “In order to determine what cause is sufficient to authorize police to stop a person, cognizance must be taken of the ‘totality of the circumstances – the whole picture.’” Leeth [v. Commonwealth], 223 Va. [335,] 340 [(1982)] (citing United States v. Cortez, 449 U.S. 411 , 417 (1981)). Harmon v. Commonwealth, 15 Va. App. 440 , 445 (1992). In this case, the Commonwealth conceded that Deputy Simms effected a nonconsensual stop when he turned on his emergency lights and approached the passenger’s side of the “In Virginia, questions of fact are binding on appeal unless ‘plainly wrong.’” McGee v. 3 Commonwealth, 25 Va. App. 193 , 198 n.1 (1997) (en banc) (citations omitted). -9- Durango. Therefore, we must determine whether that stop was supported by a reasonable, articulable suspicion that the occupants of the Durango were engaging in, or were about to engage in, criminal activity. Investigator Drury began working with C.E. approximately “a month or so” before the facts giving rise to this appeal. He knew that C.E. believed her daughter and Jarrell were involved in drug trafficking, he knew that C.E. had placed a GPS tracker on her Honda Civic, and he had previously verified the location of the Honda based on information obtained through C.E. by reviewing toll records and toll video footage. On the night of February 8, 2018, Drury learned from C.E. that her daughter – the only other lawful owner of the Honda – was in jail, but that the GPS showed the vehicle moving around Williamsburg. C.E. was upset that her car was being driven around and wanted her car back. C.E. reported that the vehicle had stopped in the parking lot of the Travel Lodge on Bypass Road, which is precisely where Investigator Drury found the vehicle. He recognized the occupant of the passenger’s seat of the Durango as Jarrell based on DMV photos, LInX photos, and evidence obtained from the post-arrest debriefs that he had previously conducted in cases involving drug transactions. He also observed the driver’s seat of the Honda Civic – the vehicle that was reported missing – empty, which further focused his suspicions on the occupants of the Durango parked next to it. Finally, as a veteran of the drug task force, Investigator Drury recognized the Travel Lodge as a high-crime location, which he testified that he had visited upwards of thirty times in his career in response to illegal drug transactions. Based on this evidence, Investigator Drury justifiably requested that a uniformed, on-duty officer conduct a brief stop for the purpose of investigating whether the individuals in the parking lot were engaged in, or were about to engage in, any criminal activity. These specific and articulable facts provided far more than a hunch of criminal activity, whether in the form of - 10 - reasonable, articulable suspicion of unauthorized use of a motor vehicle or reasonable, articulable suspicion of an illegal drug transaction. While it is possible that C.E.’s daughter could have given Jarrell permission to drive the vehicle even while the daughter was in jail, and while her incarceration does not conclusively indicate that any such permission was necessarily revoked, “[r]easonable suspicion ‘need not rule out the possibility of innocent conduct.’” Raab v. Commonwealth, 50 Va. App. 577 , 581 (2007) (en banc) (quoting United States v. Arvizu, 534 U.S. 266 , 277 (2002)). As the Supreme Court of Virginia has made clear, “the ‘mere possibility of an innocent explanation’ does not necessarily exclude a reasonable suspicion that criminal activity is afoot.” Hill v. Commonwealth, 297 Va. 804 , 815 (2019) (quoting Shifflett v. Commonwealth, 58 Va. App. 732 , 736 (2011)). Investigator Drury’s request for a stop was grounded in “a particularized and objective basis,” supported by specific and articulable facts, for suspecting that criminal activity may have been afoot at the time of the stop. See Ornelas, 517 U.S. at 696 . Considering all of these circumstances, each mounting upon the others, and “[v]iewing the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court,” Riner, 268 Va. at 330 , we hold that the trial court certainly did not err in concluding that Investigator Drury had a reasonable, articulable suspicion of criminal activity. 2. “Collective Knowledge” Doctrine Having concluded that Investigator Drury possessed the requisite knowledge to conduct an investigatory stop, the lone remaining question is whether the trial court erred in determining that Investigator Drury’s knowledge could be imputed to Deputy Simms. Long contends that the trial court erred in applying the collective knowledge doctrine in this case because Investigator Drury did not sufficiently communicate his basis of knowledge either to dispatch or to Deputy Simms when he requested a “stop out.” In addition, Long argues that the collective knowledge doctrine does not - 11 - apply here because Investigator Drury intended for Deputy Simms to initiate a consensual encounter but Simms in fact effected a nonconsensual investigatory stop. Specifically, Long argues on brief that the collective knowledge doctrine “does not authorize an officer to do anything over and above the action that is specified by the directing officer” and that “[t]he Commonwealth is asking this Court to extend the scope of the Collective Knowledge Doctrine without presenting any authority to justify such an extension.” First, Long’s argument that the stop of the Durango was unconstitutional because Investigator Drury did not sufficiently communicate his basis of knowledge is without merit.4 In Edmond v. Commonwealth, 66 Va. App. 490 (2016), this Court applied the collective knowledge doctrine. Relying on the United States Supreme Court’s decisions in Whiteley v. Warden, 401 U.S. 560 (1971), and United States v. Hensley, 469 U.S. 221 (1985), this Court held that “an officer is justified in acting upon an instruction from another officer if the instructing officer had sufficient information to justify taking such action himself.” Edmond, 66 Va. App. at 503. We emphasized that “[b]y imputing the investigating officer’s suspicions onto the responding officer, without requiring the responding officer to independently weigh the reasonable suspicion analysis, the collective knowledge doctrine preserves the propriety of the stop and avoids crippling restrictions on our law enforcement.” Id. (alteration in original) (emphasis added) (quoting United States v. Lyons, 687 F.3d 754 , 766 (6th Cir. 2012)). As this Court made clear in Edmond, the application of the collective knowledge doctrine depends on the sufficiency of the knowledge possessed by the instructing officer – not on the sufficiency of the facts communicated between the officers. Therefore, we do not agree that 4 In this case, Drury communicated his instruction through the York County Sheriff’s Office dispatcher, who then relayed the instruction to Deputy Simms. Because Long does not argue that the dispatcher’s involvement in relaying the request should render the collective knowledge doctrine inapplicable, we do not address this point. - 12 - Investigator Drury’s limited communication of the facts upon which Drury relied in requesting a “stop out” is relevant to the question of whether his knowledge could be imputed to Deputy Simms under the collective knowledge doctrine. Accepting this argument by Long would require us to disregard the basic principle of collective knowledge – i.e., that one officer is entitled to rely upon the reasonable suspicions of his or her fellow officer in taking action pursuant to that other officer’s instructions. We are likewise unpersuaded by the argument that Investigator Drury’s subjective intention for a consensual encounter should render the collective knowledge doctrine inapplicable, as “settled precedent governing Fourth Amendment cases has ‘repeatedly rejected a subjective approach.’” Mason v. Commonwealth, 64 Va. App. 292 , 301 (2015) (en banc) (quoting Fernandez v. California, 571 U.S. 292 , 302 (2014)), aff’d, 291 Va. 362 (2016). Therefore, in a collective knowledge case such as this one, the subjective intention of the instructing officer does not determine our analysis of whether the responding officer acted appropriately under an objective standard of reasonableness. When the instructing officer possesses sufficient knowledge to take a particular action without violating the Fourth Amendment, and when that knowledge is imputed to the responding officer, the responding officer can take action to the full extent of the constitutional latitude afforded to the instructing officer – without being required to again weigh independently the sufficiency of the instructing officer’s basis of knowledge. See Edmond, 66 Va. App. at 502-04; see also United States v. Ferebee, 957 F.3d 406 , 411 (4th Cir. 2020) (“[T]he collective-knowledge doctrine simply directs us to substitute the knowledge of the instructing officer or officers for the knowledge of the acting officer . . . .” (alteration in original) (quoting United States v. Massenburg, 654 F.3d 480 , 493 (4th Cir. 2011))) (emphasis omitted). Here, Investigator Drury’s subjective intention for the encounter to be consensual is of no actual consequence to our analysis of whether Deputy Simms’s stop of the Durango was reasonable. Because Investigator Drury possessed sufficient knowledge to - 13 - conduct a brief detention for the purpose of investigating his reasonable, articulable suspicion of potential criminal activity and because that knowledge was properly imputed to Deputy Simms under the collective knowledge doctrine, Deputy Simms was fully justified in acting upon that knowledge to effect a nonconsensual investigatory stop.5 In light of all of these circumstances, we hold that the trial court correctly determined that the collective knowledge doctrine could be applied in this case, and we find no error in the conclusion that Investigator Drury’s reasonable, articulable suspicion could be imputed to Deputy Simms. III. CONCLUSION In short, the trial court did not err in allowing Investigator Drury to testify about the statements C.E. made to him prior to and during the phone call on the evening of February 8, 2018. The statements were clearly reliable, as Investigator Drury independently corroborated the information from C.E. through his own observations and through his experience as a member of the regional drug task force. Even more significantly, any issue of reliability would go to the weight – not the admissibility – of this evidence. Consequently, the trial court did not err in allowing Investigator Drury to testify at the suppression hearing regarding the information he obtained from C.E. and his reasons for asking an on-duty officer to “stop out with the suspicious occupied vehicle” in the Travel Lodge parking lot. 5 Moreover, we note also that Investigator Drury’s instruction to “stop out with the suspicious occupied vehicle” would not necessarily reveal to a reasonable officer that Investigator Drury subjectively intended for this encounter to be consensual – as opposed to actually doing a stop of the vehicle as Deputy Simms did here. As Investigator Drury explained at the suppression hearing, “[I]n my mind – I don’t know that I rela[ye]d this to dispatch thoroughly, but in my mind, I wanted them to make consensual contact with the suspicious occupied vehicle in the parking lot.” Under an objective standard, given the words “stop out with the suspicious occupied vehicle,” the very premise of Long’s argument that Deputy Simms went beyond Investigator Drury’s instructions is questionable. - 14 -  Furthermore, we find no error in the trial court’s decision to deny Long’s motion to suppress because the physical evidence obtained by Deputy Simms was gathered following a lawful investigatory stop. Considering the totality of the circumstances, Investigator Drury had a reasonable, articulable suspicion that the occupants of the Durango may have been engaged in, or were about to engage in, criminal activity at the time of the stop. His suspicion was based on far more than a hunch of criminal activity. C.E. was very concerned that the vehicle she co-owned with her daughter, who was then in jail, was being driven around Williamsburg and possibly involved in drug transactions, and C.E. wanted her vehicle back. The reasonable, articulable suspicion that Investigator Drury and the police had here was supported by a particularized and objective basis for suspecting that unauthorized use of a motor vehicle or an illegal drug transaction – or both – may have been afoot at the time of the stop. In addition, the trial court did not err in applying the collective knowledge doctrine to impute Investigator Drury’s reasonable, articulable suspicion to Deputy Simms. Investigator Drury possessed sufficient knowledge to conduct an investigatory stop, and he was not required to communicate all the basis of his knowledge in order for his reasonable, articulable suspicion to be imputed to Deputy Simms under the collective knowledge doctrine. Furthermore, the fact that Investigator Drury subjectively intended for the responding officer to initiate a consensual encounter when he asked for a “stop out” has no bearing on the application of the collective knowledge doctrine to justify this particular stop, and the trial court properly disregarded Investigator Drury’s subjective intentions in determining whether the stop was justified under an objective standard of reasonableness. Because Investigator Drury possessed the requisite knowledge to conduct a brief stop for the purpose of investigating potential criminal activity and because his knowledge was imputed to Deputy Simms, the trial court correctly concluded that Deputy Simms committed no - 15 - Fourth Amendment violation by effecting a nonconsensual stop that was supported by his fellow officer’s reasonable, articulable suspicion. For all of these reasons, we affirm the judgment of the circuit court. Affirmed. - 16 -

2012-04-17 06:25:00+00

http://bulk.resource.org/courts.gov/c/F3/71/71.F3d.882.94-6494.html

71 F.3d 882 U.S. v. McCord** NO. 94-6494 United States Court of Appeals, Eleventh Circuit. Nov 13, 1995 Appeal From: S.D.Ala., No. 93-00095-CR-RV 1 AFFIRMED. ** Local Rule 36 case

2021-01-26 18:00:34.478087+00

http://www.opn.ca6.uscourts.gov/opinions.pdf/21a0051n-06.pdf

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0051n.06 No. 20-1273 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED UNITED STATES OF AMERICA, ) Jan 26, 2021 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED STATES v. ) DISTRICT COURT FOR THE WESTERN ) DISTRICT OF MICHIGAN ZACHARY STEPHEN THOMAS, ) ) OPINION Defendant-Appellant. ) BEFORE: BATCHELDER, GRIFFIN, and STRANCH, Circuit Judges. JANE B. STRANCH, Circuit Judge. Zachary Thomas pleaded guilty to bank fraud, in violation of 18 U.S.C. § 1344 (2), aggravated identity theft, in violation of 18 U.S.C. § 1028A, and the passing of a Treasury check with a falsely made and forged endorsement, in violation of 18 U.S.C. § 510 (a)(2). As part of the agreement, Thomas admitted that he stole the mail of numerous Michigan residents, targeting checking and personal identifying information. During sentencing, the district court denied Thomas’s objections to a ten-level enhancement to his offense level under the Sentencing Guidelines based on the “intended loss” and two-level sophisticated means enhancement. Thomas appeals the district court’s application of the intended loss calculation and sophisticated means enhancement. Additionally, Thomas argues that his sentence is substantively unreasonable. We AFFIRM. Case No. 20-1273, United States v. Thomas I. BACKGROUND A. Factual Background In 2016, Zachary Thomas pleaded guilty to aggravated identity theft. In exchange for his guilty plea, the Government dismissed a count of false statements and possession of stolen mail. Thomas admitted that for six months he stole mail from residents, deposited checks into one of the many bank accounts he opened online, and cashed fraudulent checks at casinos. He also admitted that he attempted to obtain $40,000 to $95,000 from the scheme. The district court sentenced Thomas to the mandatory two years’ imprisonment for his aggravated identity theft conviction and placed him on one year of supervised release, which began on February 6, 2018. Six months later, the district court revoked Thomas’s supervised release for failure to follow his probation officer’s instructions, possession of a controlled substance, and leaving the district without permission, among other violations. Thomas was released in October 2019, after serving a 12-month sentence. Investigators later learned that during the period Thomas engaged in the probation violations, he also committed mail theft and bank fraud. Between July and October 2018, Thomas regularly stole mail from Michigan residents, targeting replacement checks, credit card convenience checks, and other financial and personal identifying information. Thomas used a web-based platform, USPS Informed Delivery, to track and intercept his targets’ mail. As a part of the scheme, when Thomas obtained stolen checks, he made the checks payable to his accomplices or individuals with whom he had a relationship or whose identities he had stolen. Thomas opened and controlled bank accounts of those individuals in order to deposit the stolen and forged checks, withdrawing as much money as he could before the bank froze the account. In one instance, Thomas obtained a U.S. Treasury check for $141,073.69, deposited it into an account under his control, and withdrew $1,388.31 before the bank froze the account. -2- Case No. 20-1273, United States v. Thomas The Government charged Thomas in a ten-count indictment related to bank fraud, aggravated identity theft, passing a treasury check with false or forged endorsement, and possession of stolen U.S. mail. Thomas pleaded guilty to three counts: Count 3, bank fraud, in violation of 18 U.S.C. § 1344 (2); Count 5, aggravated identity theft, in violation of 18 U.S.C. § 1028A; and Count 9, the passing of a Treasury check with a falsely made and forged endorsement, in violation of 18 U.S.C. § 510 (a)(2). B. Procedural Background For Guidelines range calculation purposes, the U.S. Probation Office’s Presentence Report grouped Counts 3 and 9 as “Count Group 1.” The PSR included a base offense level of seven for Count Group 1, a ten-level enhancement for intending loss over $150,000, a two-level enhancement for ten or more victims, and a two-level enhancement for sophisticated means, resulting in a total adjusted offense level of 21. The PSR suggested a two-level departure for acceptance of responsibility and a one-level departure for assisting authorities with investigation or prosecution, reducing the total offense level to 18. It also recommended that the term of imprisonment on Count 5 be served consecutively to any other counts. The Government calculated a criminal history of six and assigned two additional points for commission of the subject offenses while on supervised release, for a total of eight points, resulting in a criminal history category of IV. As a result, the Government asserted that Thomas’s Guidelines range was 41 to 51 months’ imprisonment for each count in Count Group 1; and 24 months for Count 5, consecutive to the other counts. The Government argued for 48 months’ imprisonment each for Counts 3 and 9, concurrently; and 24 months for Count 5 to be completed consecutive to Counts 3 and 9. At the sentencing hearing, Thomas’s counsel objected to the ten-level enhancement for causing an intended loss over $150,000. He argued that Thomas did not subjectively intend to -3- Case No. 20-1273, United States v. Thomas obtain the entire U.S. Treasury check and successfully received only $1,388. Thomas also objected to the sophisticated means enhancement. The district court granted a one-level downward departure to reflect Thomas’s cooperation with the Government and a three-level downward adjustment for acceptance of responsibility, resulting in a final Guidelines range of 37 to 46 months’ imprisonment for his convictions of bank fraud (Count 3) and passing a Treasury check (Count 9). The district court then considered the unique circumstances of Thomas’s case, rejected both of Thomas’s objections, and varied upward by two-levels for Count Group 1. Accordingly, the Guidelines range for Count Group 1 increased to 46 to 57 months. The court sentenced Thomas to 54 months each for the bank fraud and passing a Treasury check counts, to be served concurrently, and 24 months for the aggravated identity theft count, to be served consecutively. II. ANALYSIS A. Intended Loss Enhancement First, Thomas appeals the district court’s denial of his objection to the calculation of the Guidelines range based on the interpretation and calculation of “intended loss.” We “review de novo the district court’s method for calculating [loss], and review its factual findings for clear error.” See United States v. Maddux, 917 F.3d 437 , 450 (6th Cir. 2019) (citing United States v. Warshak, 631 F.3d 266 , 328 (6th Cir. 2010)). Findings of fact on intended loss in a fraud case “are not to be overturned unless they are clearly erroneous.” United States v. Ellis, 938 F.3d 757 , 760–61 (6th Cir. 2019). USSG § 2B1.1 addresses offenses involving fraud and deceit and established Thomas’s Guidelines range. The loss amount “is the greater of actual loss or intended loss.” USSG. § 2B1.1, comment. n.3(A). Intended loss is the “pecuniary harm that the defendant purposely sought to inflict.” Id. This loss amount includes harms “impossible or unlikely to occur,” United States v. -4- Case No. 20-1273, United States v. Thomas Murphy, 815 F. App’x 918, 922 (6th Cir. 2020) (quoting USSG § 2B1.1, comment. n.3(A)(ii)), as “their inclusion better reflects the culpability of the offender,” United States v. McBride, 362 F.3d 360 , 374 (6th Cir. 2004) (quoting USSG App. C. at 181 (2003)). “Because of the difficulties often associated with attempting to calculate loss in a fraud case, the district court ‘need only make a reasonable estimate’ of the loss using a preponderance of the evidence standard.” United States v. Wendlandt, 714 F.3d 388 , 393 (6th Cir. 2013) (quoting United States v. Jones, 641 F.3d 706 , 712 (2011)). The district court’s “determination is entitled to appropriate deference.” USSG § 2B1.1, comment. n.3(C). Thomas contends that he should not be responsible for the entire $141,073.69 Treasury check because he was aware that there was a limited opportunity to withdraw money and did not intend or expect to receive all of the funds deposited from stolen or fraudulent checks. He received less than one percent of the check amount. Thomas argued that the district court should adopt a loss-amount formula based on the actual loss from the other victims and an averaging formula. The district court calculated the intended loss to be $214,424.96, including the entire U.S. Treasury check of $141,073.69. The court relied on United States v. Vysniauskas, 593 F. App’x 518, 524 (6th Cir. 2015), to support Thomas’s responsibility for the entire loss amount because he “was going to continue to take as much of that $141,[073.69] as he could until he was stopped.” In McBride, we recognized that there is “some point at which a perpetrator’s misperception of the facts may become so irrational that the words ‘intended loss’ can no longer reasonably apply.” McBride, 362 F.3d at 374 . Thomas’s perceptions and actions did not rise to that level of irrationality. See United States v. Jordan, 544 F.3d 656 , 672 (6th Cir. 2008) (approving the district court’s inclusion of the total check amount in the intended loss calculation even though the account was frozen before the defendant could actually withdraw the funds). In Vysniaukas, we recognized -5- Case No. 20-1273, United States v. Thomas that an intended loss calculation may include face value amounts of fraudulent checks. 593 F. App’x at 525–26. Similarly, here, Thomas’s intended loss calculation includes the face value of stolen and fraudulent checks he deposited, including the Treasury check. Moreover, Thomas withdrew $1,388.31 from the Treasury check before the account was closed. It is reasonable to infer that Thomas intended to continue, and would have continued, withdrawing and utilizing additional funds from the check had the bank not intervened and frozen the account. See United States v. Tate, 136 F. App’x 821, 826–27 (6th Cir. 2005) (upholding an intended loss calculation that included unused checks because it was reasonable to infer that the defendants would have benefitted from the checks, but for an interruption). The district court did not err in finding that the total loss attributable to Thomas’s offenses was sufficient to add ten offense levels. B. Sophisticated Means Second, Thomas appeals the district court’s denial of his objection to the two-point sophisticated means enhancement under USSG § 2B1.1(b)(10)(C). “[W]e review the district court’s determination that his offense involved sophisticated means for clear error.” United States v. Igboba, 964 F.3d 501 , 510 (6th Cir. 2020) (citing United States v. Kraig, 99 F.3d 1361 , 1371 (6th Cir. 1996)). USSG § 2B1.1(b)(10)(C) prescribes a two-level increase for use of sophisticated means. The Guidelines’ commentary defines “sophisticated means” as “especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense.” USSG § 2B1.1 comment. n.9(B). Further, “[c]onduct such as hiding assets or transactions, or both, through the use of fictitious entities, corporate shells, or offshore financial accounts also ordinarily indicates sophisticated means.” Id. A defendant who utilizes an alias to cover up evidence of a crime may -6- Case No. 20-1273, United States v. Thomas demonstrate sophisticated means. See Igboba, 964 F.3d at 512 (citing United States v. Crosgrove, 637 F.3d 646 , 667 (6th Cir. 2011)). We have also held that “funneling of transactions through relatives in order to disguise the origin of funds is sufficient to support an enhancement for sophisticated means.” United States v. Erwin, 426 F. App’x 425, 437 (6th Cir. 2011) (citing United States v. May, 568 F.3d 597 , 607 (6th Cir. 2009)). Even if the conduct does not appear to be particularly intricate on its face, the enhancement may still apply. For example, in United States v. Simmerman, 850 F.3d 829 (6th Cir. 2017), we upheld a sophistication enhancement where the defendant’s embezzlement actions were not particularly complex, but she employed sophisticated methods to evade detection, including using dormant accounts or family members accounts to hide stolen money and manipulating a computerized accounting system. Id. at 833 . Thomas contends that his sophisticated means enhancement is unmerited because there was nothing complex or intricate about his conduct beyond the actual commitment of the crime. The district court found that Thomas used sophisticated means to execute his crime, noting that Thomas “use[d]. . . technology [to track] mail and numerous other means . . . described in the presentence investigation report” to commit the fraud. Here, viewing the totality of the circumstances, Thomas’s conduct was sufficiently intricate or complex to warrant a sophistication enhancement. The PSR prepared by the Probation Office noted that Thomas’s fraudulent conduct involved utilizing a tracking technology to discretely monitor and intercept mail from his victims to obtain financial information. He used multiple email and identification aliases to complete financial transactions and funneled transaction through his associates and loved ones. See Simmerman, 850 F.3d at 833 (recognizing that using a sophisticated means to conceal a theft qualifies as a predicate for the § 2B1.1(b)(10)(C) enhancement). In light of the totality of Thomas’s conduct, the district court did not clearly err in -7- Case No. 20-1273, United States v. Thomas imposing the two-point sophistication enhancement. See United States v. Masters, 216 F. App’x 524, 526 (6th Cir. 2007) (“[I]t is the totality of the defendant’s conduct—the entire scheme—that the district court found was carried out using ‘sophisticated means.’”). C. Substantive Reasonableness Finally, Thomas challenges his sentence as substantively unreasonable. “[W]e ‘review a district court’s sentencing determination, “under a deferential abuse-of-discretion standard,” for reasonableness.’” United States v. Herrera-Zuniga, 571 F.3d 568 , 581 (6th Cir. 2009) (quoting United States v. Bolds, 511 F.3d 568 , 578 (6th Cir. 2007)). Gall v. United States instructs us to assess whether an otherwise procedurally reasonable sentence is greater than necessary, considering the defendant’s unique circumstances. 552 U.S. 38 , 49–51 (2007). A sentence is substantively unreasonable if a district court “placed too much weight on some of the § 3553(a) factors and too little on others.” United States v. Boucher, 937 F.3d 702 , 707 (6th Cir. 2019). The court does not need to list each § 3553(a) factor by name, but must offer “more than a simple and conclusory judicial assertion,” to justify a sentencing determination. United States v. Ferguson, 518 F. App’x 458, 467 (6th Cir. 2013). “[W]e must respect the district court’s reasoned discretion to weigh the factors ‘to fashion individualized, fact- driven sentences without interference from appellate courts,” United States v. Perdue, 818 F. App’x 419, 423 (6th Cir. 2020) (quoting Boucher, 937 F.3d at 708), but the justification for a deviation must be “sufficiently compelling to support the degree of variance,” id. (quoting Gall, 552 U.S. at 50 ). Sentences within the advisory Guidelines range are presumptively reasonable; however, sentences that deviate do not receive the same deference. Herrera-Zuniga, 571 F.3d at 582 (citing Rita v. United States, 551 U.S. 338 , 347–51 (2007)). The greater the deviation, the more compelling the justification must be. Perdue, 818 F. App’x at 423. -8- Case No. 20-1273, United States v. Thomas The district court sentenced Thomas to 54 months for Count Group 1, an eight-month upward variance from the 37 to 46-month range suggested by the Guidelines. The court “considered all of the defendant’s arguments in support of his request for a lower sentence,” but ultimately selected a two-level upward variance. The court explained the basis of its upward variance: (1) Thomas engaged in “brazen[]” conduct that may serve as an entryway to future fraud; (2) the public needs protection from Thomas’s conduct given that the fraud occurred while Thomas was on supervised release for a similar crime; and (3) there were many victims. Thomas contends that his sentence is substantively unreasonable because the court gave an “unreasonable amount of weight to certain factors” and “ignor[ed] [his] arguments for a lower sentence.” He suggests that the factors cited by the court for the upward variance were already accounted for and reflected in the suggested Guidelines range. We have explained that the district court can rely on “the same facts and analyses. . . to justify both a Guidelines departure and a variance, [but] the concepts are distinct.” United States v. Tristan-Madrigal, 601 F.3d 629 , 635 (6th Cir. 2010) (quoting United States v. Grams, 566 F.3d 683 , 687 (6th Cir.2009)). Here, while Thomas was previously punished for violating the terms of his supervised release, that penalization was for failure to follow his probation officer’s instructions, possession of a controlled substance, leaving the district without permission, and other issues unrelated to the conduct leading to his second plea and sentence. It is relevant that Thomas’s conduct leading to this case occurred while he was on supervised release but resulted in a harm that is distinct from that for which he was previously punished. That Thomas’s conduct increased in severity was also important to the district court’s reasoning for its upward variance here. See, e.g., United States v. Williams, 664 F. App’x 517, 519 (6th Cir. 2016) (noting that the crimes were increasing in severity). The court noted the -9- Case No. 20-1273, United States v. Thomas “brazenness” of Thomas’s second fraud, which included using tracking technology, obtaining false identifications, and utilizing the identities and accounts of others. Moreover, no more than eight months after Thomas “got the benefit of a generous plea agreement” for aggravated identity theft, one of the counts also charged in this case, Thomas engaged in a more sophisticated identity theft and bank fraud scheme. The district court appropriately considered the § 3553(a) factors and did not arbitrarily select Thomas’s sentence. The sentence imposed was not substantively unreasonable. III. CONCLUSION Therefore, for the reasons discussed above, we AFFIRM Thomas’s sentence. -10-

2021-01-26 18:00:35.260657+00

http://www.opn.ca6.uscourts.gov/opinions.pdf/21a0050n-06.pdf

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0050n.06 Case No. 19-6466 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jan 26, 2021 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE WESTERN DISTRICT OF JOHN WRIGHT, ) TENNESSEE ) Defendant-Appellant. ) BEFORE: COOK, GRIFFIN, and LARSEN, Circuit Judges. COOK, Circuit Judge. John Wright appeals his 37-month sentence for violating the terms of his supervised release, challenging the district court’s decision to run that sentence consecutive to the sentence yet to be imposed on his guilty plea to new federal drug charges. We AFFIRM. I. Years before the facts underpinning this appeal, Wright pleaded guilty to a drug-trafficking crime, for which the district court sentenced him to 84 months of imprisonment and four years of supervised release. As is typical, the supervised-release terms warned that committing criminal conduct during the term or leaving the Western District of Tennessee without permission would subject him to revocation and further punishment. Case No. 19-6466, United States v. Wright In violation of those terms, Wright found himself charged with drug offenses while on supervised release. The Drug Enforcement Administration arrested him on methamphetamine charges in the Middle District of Tennessee. Wright later pleaded guilty to those charges and on the same day admitted to the separately punishable supervised-release violations. At the hearing to consider the appropriate sentence for Wright’s supervised-release violations, Wright’s counsel and the government jointly sought a sentence at the bottom of the Guidelines range (37 to 46 months’ imprisonment). The court seemed inclined to impose a harsher sentence based on the drug amounts involved. But Wright’s ongoing cooperation in the new criminal case, together with his efforts to “get away from bad influences” and “turn over a new leaf,” moved the court toward the lighter, jointly-recommended sentence. In the end, the court sentenced Wright to the Guidelines’ low end of 37 months. The other feature of the supervised-release-violations hearing centered on the court’s suggestion that the sentence it would impose would run consecutive to the anticipated sentence on Wright’s new guilty plea on the methamphetamine charges. On that score, the court offered its assessment that the supervised-release violations represented a “separate . . . breach of trust,” meriting its own sanction that a concurrent sentence would obviate. The court thus ordered that Wright serve the two sentences consecutively. Wright appeals. II. We review criminal sentences for procedural and substantive reasonableness. Gall v. United States, 552 U.S. 38 , 51 (2007). “[P]rocedural review of a sentence concerns the propriety of the factors that go into a sentence; substantive review assesses the reasonableness of the sentence that results.” United States v. Perez-Rodriguez, 960 F.3d 748 , 753 (6th Cir. 2020). -2- Case No. 19-6466, United States v. Wright “[T]hese inquiries are distinct and should be analyzed separately.” United States v. Villa- Castaneda, 755 F. App’x 511, 523 (6th Cir. 2018). Ordinarily, we review claims of procedural and substantive unreasonableness for an abuse of discretion. See Gall, 552 U.S. at 51 . But here, Wright complains for the first time on appeal that the district court failed to clarify its rationale for running the sentences consecutively rather than concurrently. This sort of procedural complaint ought to have been lodged at the hearing. Because Wright failed to alert the court to this procedural objection, we review it for plain error. United States v. West, 962 F.3d 183 , 191 (6th Cir. 2020). To satisfy this stricter standard, Wright must show a clear or obvious error that affected his substantial rights, and the fairness, integrity, or public reputation of the judicial proceedings. United States v. Igboba, 964 F.3d 501 , 508 (6th Cir. 2020). “Unlike objections to the procedural reasonableness of a sentence, the defendant need not object to the substantive reasonableness of a sentence in the district court in order to preserve the issue for appeal.” United States v. Elliott, --- F. App’x ----, ----, 2020 WL 6781232 , at *2 (6th Cir. Nov. 18, 2020) (quoting United States v. Massey, 663 F.3d 852 , 857 (6th Cir. 2011)); see also Holguin-Hernandez v. United States, 140 S. Ct. 762 , 766–67 (2020). “But plain-error review still applies to ‘any arguments for leniency that the defendant does not present to the trial court.’” United States v. Bartoli, 728 F. App’x 424, 429 (6th Cir. 2018) (quoting United States v. Vonner, 516 F.3d 382 , 392 (6th Cir. 2008) (en banc)); see also Holguin-Hernandez, 140 S. Ct. at 768 (Alito, J., concurring) (favorably citing Vonner). -3- Case No. 19-6466, United States v. Wright III. Wright maintains that the district court committed plain procedural error in running his sentence consecutive to his anticipated sentence for the new federal drug charges. He also challenges the 37-month sentence as substantively unreasonable. We reject both arguments. A. Wright first claims that the district court failed to adequately explain its decision to impose a consecutive sentence. We require a sentencing court “to make generally clear the rationale under which it has imposed the consecutive sentence.” Villa-Castaneda, 755 F. App’x at 521–22 (quoting United States v. Cochrane, 702 F.3d 334 , 346 (6th Cir. 2012)). Here, the district court alerted Wright and his counsel at the hearing that it would impose a consecutive sentence because Wright’s supervised-release violations represented a “separate . . . breach of trust,” deserving a sanction distinct from the sentence to be imposed for the drug-related crimes. It repeated that rationale several times throughout the hearing, underscoring its view that Wright’s “serious violations” warranted punishment independent of his sentence in the new federal drug case. The court’s explanation evinces no error, much less plain error. See, e.g., United States v. Markley, 607 F. App’x 476, 477–78 (6th Cir. 2015) (per curiam); United States v. Eubanks, 516 F. App’x 576, 579 (6th Cir. 2013). Contrary to Wright’s suggestion, the record also confirms that the court rightly “turned its attention” to the Sentencing Guidelines. United States v. Massey, 758 F. App’x 455, 467 (6th Cir. 2018) (per curiam) (quoting United States v. Johnson, 553 F.3d 990 , 998 (6th Cir. 2009)). The Guidelines generally recommend imposing consecutive sentences for supervised-release violations because those “constitute[] ‘a breach of trust’”—echoing the district court’s rationale here. Elliott, --- F. App’x at ----, 2020 WL 6781232 , at *6 (quoting USSG Ch. 7, Pt. A, -4- Case No. 19-6466, United States v. Wright Introduction); see also USSG § 7B1.3(f) (recommending that “[a]ny term of imprisonment imposed upon the revocation of probation or supervised release . . . be served consecutively to any sentence of imprisonment that the defendant is serving”). Wright complains that the court failed to mention USSG § 5G1.3. That provision, however, “does not apply to sentences imposed for violations of supervised release.” United States v. King, 914 F.3d 1021 , 1025 n.3 (6th Cir. 2019) (quoting Cochrane, 702 F.3d at 347 n.1). Instead, it concerns “sentences for convictions that occur while a defendant is on supervised release, not a supervised release violation itself.” Id. (quoting Cochrane, 702 F.3d at 347 n.1). Wright goes on to argue that “[i]t simply cannot be” that the district court retained discretion to impose a consecutive sentence when his other sentence had not yet been imposed. Addressing a similar question in Setser v. United States, the Supreme Court held that federal judges could impose a sentence consecutive to an anticipated state sentence. 566 U.S. 231 , 244–45 (2012). In a footnote, the Court took no stance on whether such discretion extends to anticipated federal sentences like Wright’s. Id. at 241 n.4 (noting that “[i]t could be argued that [18 U.S.C.] § 3584(a) impliedly prohibits such an order because it gives that decision to the federal court that sentences the defendant when the other sentence is ‘already’ imposed”). Though this court has not addressed the issue, several other circuits have seized on Setser’s footnote and concluded that § 3584(a) prohibits district courts from running a sentence consecutive to an anticipated federal sentence. See United States v. Ramon, 958 F.3d 919 , 922–23 (10th Cir. 2020); United States v. Almonte-Reyes, 814 F.3d 24 , 28 (1st Cir. 2016); United States v. Obey, 790 F.3d 545 , 549 (4th Cir. 2015); United States v. Montes-Ruiz, 745 F.3d 1286 , 1291–93 (9th Cir. 2014). Wright, however, forfeited this argument by failing to invoke § 3584(a) in his opening brief. See United States v. Wooden, 945 F.3d 498 , 506 (6th Cir. 2019). -5- Case No. 19-6466, United States v. Wright Regardless, this interesting debate matters not here, given the applicable plain-error standard of review; no “binding case law” supports Wright’s preferred reading. United States v. Al-Maliki, 787 F.3d 784 , 794 (6th. Cir. 2015); see Ramon, 958 F.3d at 923–24; Obey, 790 F.3d at 550; United States v. Watson, 843 F.3d 335 , 336–38 (8th Cir. 2016). We leave the interpretation of § 3584(a) to a future case because any error was not plain. See Watson, 843 F.3d at 338. B. Wright briefly adverts to substantive reasonableness, claiming that he should have received a lower sentence because his criminal-history category “substantially overrepresent[ed] the seriousness of [his] criminal history or the likelihood that [he] will commit other crimes.” (Appellant Br. at 18 (quoting USSG § 4A1.3).)1 But Wright received exactly what he asked for: a sentence within the agreed-upon Guidelines range of 37 to 46 months’ imprisonment. The district court sentenced him at the bottom of that range to boot. Wright thus waived any challenge to the length of his sentence by “explicitly agree[ing]” to it. United States v. Smith, 779 F. App’x 308, 311 (6th Cir. 2019) (per curiam) (quoting United States v. Mabee, 765 F.3d 666 , 671 (6th Cir. 2014)). Whether characterized as a waiver or a failure on the merits, courts repeatedly reject substantive-reasonableness challenges when the defendant received a requested sentence. See, e.g., United States v. Burton, 802 F. App’x 896, 910 (6th Cir. 2020); United States v. Hicks, 596 F. App’x 373, 373, 376–77 (6th Cir. 2014); United States v. Dumphord, 522 F. App’x 251, 253 (6th Cir. 2013); see also, e.g., United States v. Mancera-Perez, 1 USSG § 4A1.3 speaks to the appropriateness of a departure under the Guidelines. Wright, however, never moved for a downward departure. What’s more, “[w]e do not review a district court’s decision declining to impose a departure, or its failure to depart to the extent requested by defendant, ‘unless the record shows that the district court was unaware of, or did not understand, its discretion to make such a departure.’” United States v. Crumpton, 814 F. App’x 964, 969 (6th Cir. 2020) (quoting United States v. Santillana, 540 F.3d 428 , 431 (6th Cir. 2008)). We therefore read Wright’s brief as arguing that the district court “placed too much weight on some of the § 3553(a) factors and too little on others in sentencing [him].” United States v. Rayyan, 885 F.3d 436 , 442 (6th Cir. 2018). Plain-error review applies because Wright failed to present this argument for leniency to the district court. See Vonner, 516 F.3d at 392 . -6- Case No. 19-6466, United States v. Wright 505 F.3d 1054 , 1059 (10th Cir. 2007); United States v. Burnes, 423 F. App’x 671, 673 (8th Cir. 2011) (per curiam); United States v. Jordan, 399 F. App’x 517, 520 (11th Cir. 2010) (per curiam). We follow the same course here. IV. We AFFIRM. -7-

2020-11-20 19:19:48.299008+00

James T. Shiosaki, Petitioner v. Commissioner of Internal Revenue, Respondent Shiosaki v. Commissioner Docket Nos. 346-71, 8440-71, 4476-73 United States Tax Court March 28, 1974, Filed *132 Rule 121(b), Tax Court Rules of Practice and Procedure. -- The respondent moved for summary judgment on the ground that the petitioner was collaterally estopped from litigating the respondent's determination of deficiencies. Held, as the respondent failed to show that there is an absence of a "genuine dispute as to any material fact," the motion is denied. James T. Shiosaki, pro se. Stephen B. Zorick, Jr., for the respondent. Simpson, Judge. SIMPSON *861 OPINION The respondent has made a timely motion for summary judgment pursuant to Rule 121, Tax Court Rules of Practice and Procedure, 1 in these three cases, which all involve the same petitioner and the same issue. *133 The petitioner has been before this Court in a prior case, James T. Shiosaki, T.C. Memo. 1971-24. In that case, the petitioner had incurred certain expenses in traveling to Las Vegas for purposes of gambling in 1967, and he sought to deduct them under section 212(1) of the Internal Revenue Code of 1954. 2 The Court decided that such expenses were not deductible because it found as a fact that in incurring such expenses, the petitioner was not motivated by a bona fide profit-seeking purpose. Such decision was affirmed on appeal on the ground that the appellate court accepted the factual finding by this Court. Shiosaki v. Commissioner, 475 F. 2d 770 (C.A. 9, 1973), certiorari denied 414 U.S. 830">414 U.S. 830 (1973). In his Federal income tax returns for 1968, 1969, and 1971, the petitioner again sought to deduct his expenses of traveling to Las Vegas, and the respondent*134 disallowed the deductions for each year. The petitioner filed timely petitions with this Court challenging the disallowance for each of such years. In his answer, the respondent, after denying certain allegations in the petition, affirmatively pleaded collateral estoppel; he alleged that the controlling facts and law for each such year were the same as in James T. Shiosaki, supra. In support of his motion for summary judgment, the respondent argued that the facts were the same in 1968, 1969, and 1971 as in 1967 and that the petitioner is collaterally estopped from challenging the deficiencies determined for those years. At the hearing on the motion, *862 the petitioner, who was acting without the assistance of counsel, expressed a desire to have a trial in these cases; he indicated a wish to attempt to convince a different judge that a different interpretation of the facts and law should be reached in his case. Rule 121 provides: (a) General: Either party may move, with or without supporting affidavits, for a summary adjudication in his favor upon all or any part of the legal issues in controversy. * * * (b) Motion and Proceedings Thereon: * *135 * * A decision shall thereafter be rendered if the pleadings, answers to interrogatories, depositions, admissions, and any other acceptable materials, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law. A partial summary adjudication may be made which does not dispose of all the issues in the case. * * * * (d) Form of affidavits; Further Testimony; Defense Required: * * * When a motion for summary judgment is made and supported as provided in this Rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise porvided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, a decision, if appropriate, may be entered against him. Rule 121, like many other provisions of the Rules which became effective on January 1, 1974, corresponds to a provision of the Federal Rules of Civil Procedure, namely, rule 56 thereof. See the note to Rule 121, 60 T.C. 1127-1128 (1973). In any question turning on the interpretation of any such*136 provision, the history of the corresponding provision of the FRCP and the authorities interpreting such provision will be considered and examined to determine whether similar conclusions are appropriate for proceedings in the Tax Court. Compare Rule 1(a), which provides: (a) Scope: These Rules govern the practice and procedure in all cases and proceedings in the United States Tax Court. Where in any instance there is no applicable rule of procedure, the Court or the Judge before whom the matter is pending may prescribe the procedure, giving particular weight to the Federal Rules of Civil Procedure to the extent that they are suitably adaptable to govern the matter at hand. Summary judgment is a device used to expedite litigation; it is intended to avoid unnecessary and expensive trials of phantom factual questions. Cox v. American Fidelity & Casualty Co., 249 F.2d 616">249 F.2d 616 (C.A. 9, 1957); Polly Chin Sugai v. General Motors Corporation, 137 F. Supp. 696">137 F.Supp. 696 (D. Idaho 1956). However, summary judgment is not a substitute for a trial; disputes over factual issues are not resolved in such proceedings. Cox v. American Fidelity & Casualty Co., supra;*137 Griffeth v. Utah Power & Light Co., 226 F.2d 661">226 F.2d 661 (C.A. 9, 1955). In this respect, the trial judge's only function is to determine whether there are any factual questions to be tried. Vickery v. Fisher Governor Co., 466">417 F.2d 466 (C.A. 9, 1969); Byrnes v. Mutual Life Insurance Co. *863 , 217 F.2d 497">217 F.2d 497 (C.A. 9, 1954), certiorari denied 348 U.S. 971">348 U.S. 971 (1955); Hoffman v. Babbitt Bros. Trading Co., 203 F.2d 636">203 F.2d 636 (C.A. 9, 1953). A motion for summary judgment is granted when it is shown "that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law." Rule 121(b); see rule 56, FRCP. Since the effect of granting a motion for summary judgment is to decide the case against a party without allowing him an opportunity for a trial, such motion should be "cautiously invoked" and only granted after a careful consideration of the case. Associated Press v. United States, 326 U.S. 1">326 U.S. 1, 6 (1945); Cox v. American Fidelity & Casualty Co., supra.*138 The burden is on the movant to show that there is no dispute about the facts of the case. Adickes v. Kress & Co., 398 U.S. 144">398 U.S. 144 (1970); United States v. Perry, 431 F. 2d 1020 (C.A. 9, 1970). In support of his motion, the respondent has shown that the petitioner deducted gambling expenses on his Federal income tax returns for the years 1968, 1969, and 1971. The respondent also attached to his motions letters from the petitioner in which he suggested expeditious consideration of his returns for 1969 and 1971 because they involved the same issue as in the case of James T. Shiosaki, T.C. Memo 1971-24">T.C. Memo. 1971-24. In the earlier case, the petitioner testified that "he hopes future gains will more than make up for past losses"; nevertheless, Commissioner Sacks, who heard such case, concluded on the basis of the entire record: It is our opinion that petitioner has failed to show that in incurring expenses for trips to Las Vegas in 1967 to engage in gambling he was motivated by a bona fide profit seeking purpose. We have drawn this conclusion not from any determination that some hypothetical "reasonable*139 man" faced with petitioner's consistent and continued losses could not expect a profit, but from a conviction that petitioner himself, were he not so inextricably caught up in the gambling game, could not expect, by reason of these sustained losses, to turn a profit. On appeal, the appellate court said: we affirm the holding that the expense was not a "business" expense. The tax court listened to Shiosaki testify at length. It obviously concluded that the true motive of the trips was not predominantly to make a profit, despite Shiosaki's positive attestation that it was. We are in an area where we cannot revise the fact finder's finding. [475 F.2d 770">475 F.2d 770, 771 (C.A. 9, 1973).] Thus, the holding in the earlier case was based on the factual conclusion as to the petitioner's purpose in making the trips to Las Vegas. For collateral estoppel to apply, the Court must find that the facts in the decided case, as well as the law, are the same as those in the pending case. Commissioner v. Sunnen, 333 U.S. 591">333 U.S. 591 (1948); Estate of William G. Maguire, 50 T.C. 130 (1968). Thus, collateral estoppel*140 cannot be applied in these cases without first determining whether the same factual conclusion should be reached in the pending cases. Without a trial and an opportunity for the petitioner to present his evidence, no such factual conclusion can be reached in this case. Ordinarily, summary *864 judgment should not be granted in a case in which intent is an issue. Consolidated Electric Co. v. United States, 355 F.2d 437">355 F.2d 437 (C.A. 9, 1966). A conclusion as to the petitioner's intent should not be reached without the benefit of a trial in which his demeanor can be observed and his credibility can be weighed. Moreover, the petitioner's letters requesting expeditious consideration of his returns for 1969 and 1971 were not intended to constitute admissions for purposes of this proceeding and should not be treated as such. See Lovable Co. v. Honeywell, Inc., 431 F. 2d 668 (C.A. 5, 1970). In view of the respondent's complete failure to establish the absence of a factual issue, there was no burden on the petitioner to come forth with affidavits or other documentary evidence establishing the existence of a factual issue. *141 Adickes v. Kress & Co., supra;First Nat. Bank v. Cities Service, 391 U.S. 253">391 U.S. 253 (1968). Nor do the petitioner's statements at the hearing constitute a concession that there is no factual issue. Although his statements were somewhat ambiguous, we must take into consideration the fact that he lacked legal counsel, and it was clear that he does desire another opportunity to convince the Court that he had a profit-seeking purpose in making his trips to Las Vegas to gamble. Cf. Rushing v. Commissioner, 214 F. 2d 383 (C.A. 5, 1954), affirming a Memorandum Opinion of this Court. In conclusion, we find that there is a factual issue, namely, what was the petitioner's intent in 1968, 1969, and 1971, and accordingly, the respondent's motion for summary judgment will be denied. An appropriate order will be issued. Footnotes

2020-12-01 12:13:42.252564+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=19301&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa04%5cOpinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-19-00443-CV ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY, Appellant v. Peter REININGER, Appellee From the 288th Judicial District Court, Bexar County, Texas Trial Court No. 2016-CI-21617 Honorable Cynthia Marie Chapa, Judge Presiding Opinion by: Beth Watkins, Justice Sitting: Luz Elena D. Chapa, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice Delivered and Filed: November 25, 2020 AFFIRMED IN PART; REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART Appellant Allstate Vehicle and Property Insurance Company appeals a judgment in favor of its insured, appellee Peter Reininger. We affirm the judgment in part, reverse and render judgment for Allstate in part, and remand this cause for a new trial on attorney’s fees. BACKGROUND Before 2015, Reininger’s home was insured under a Liberty Mutual policy that covered cosmetic hail damage to his metal roof. When Reininger began looking for a new policy in 2015, he contacted Justin Losoya, an Allstate agent. Reininger told Losoya he wanted a policy that was  04-19-00443-CV “apples to apples” with his Liberty Mutual policy, and Losoya stated Allstate could provide that. Reininger also asked Losoya, “[I]f I have any bad weather, hail or any type of hail and it damaged my roof, am I covered?” Losoya answered, “Yes, sir, Mr. Reininger, you are. You pay [a] 1 percent [deductible].” Losoya did not mention any exclusions on coverage for the roof, and Reininger did not make any further inquiries about exclusions. Reininger agreed to purchase automobile and homeowners’ policies from Allstate. On June 26, 2015, Losoya sent Reininger an email with the subject line “Allstate Insurance Policies.” In the email, Losoya stated he had “attached a copy of both policies for your records.” The attachments were titled “Reininger Peter_Auto Policy” and “Reininger Peter_Home Policy.” The “Reininger Peter_Home Policy” attachment was a six-page document that contained a policy number and listed coverage amounts, deductibles, discounts to be applied to Reininger’s policy, and information about Reininger’s property. Other than specifying the monetary limits of the coverage, it did not identify any coverage exclusions. However, it stated, “Any insurance bound hereunder shall otherwise be subject in all respects to the terms and conditions of the regular policy forms of the Company at present in use and to the statements in this application.” It also contained a “Binder Provision” providing that Allstate, “[i]n reliance on the statements in this application and subject to the terms and conditions of the policy authorized for [Allstate’s] issuance to the applicant, binds the insurance applied for[.]” Allstate internally refers to a document like this one as a “binder.” Reininger believed the “Reininger Peter_Home Policy” attachment was his homeowners’ insurance policy, and he paid his premium after he reviewed that document. After Reininger paid his premium, Allstate created the policy. In contrast to the six-page binder, the policy was a document of approximately sixty pages. Unlike the Liberty Mutual policy, the Allstate policy contained a “metal roof surfaces cosmetic damage exclusion endorsement” providing the policy -2-  04-19-00443-CV did not cover “[c]osmetic damage caused by hail to a metal roof surface, including but not limited to, indentations, dents, distortions, scratches, or marks, that change the appearance of a metal roof surface.” The policy also explained, “We will not apply this exclusion to sudden and accidental direct physical damage to a metal roof surface caused by hail that results in water leaking through the metal roof surface.” Both Reininger and his wife, Nancy, contend the only homeowners’ policy document they ever received from Allstate was the six-page binder. On April 12, 2016, a hailstorm struck Reininger’s home. After the storm, Reininger reported to Losoya that the roof and other parts of his home had been damaged, and Allstate opened a claim. On May 2, 2016, a claims adjustor, Kevin Phillips, inspected Reininger’s property on Allstate’s behalf. 1 Reininger reported to Phillips that there was no interior damage, and Phillips did not inspect the home’s interior. After surveying the roof, Phillips told Reininger the storm had caused only cosmetic damage that was not covered by the policy. Both Reininger and Nancy testified that this was the first time they learned about the cosmetic damage exclusion, and both testified that they would not have purchased the policy if they had known about that exclusion. Shortly after Phillips’s inspection, Reininger and Nancy noticed water leaks inside their home. Because they had not experienced any interior leaks before the hailstorm, they requested a further inspection of their roof, and Allstate scheduled a second inspection with a different claims adjustor. However, Reininger cancelled it after the second adjustor told him, without first inspecting the property, that “he didn’t think he was going to find anything worse than Mr. Phillips did.” Although Allstate’s claim file indicated Reininger had stated he wanted to reschedule the second inspection, Allstate closed the file two days later. 1 While Phillips is not an Allstate employee, Allstate does not dispute that it would be liable for his wrongful actions, if any. -3-  04-19-00443-CV Reininger sued Allstate and Phillips for breach of contract, fraud, and violations of the Texas Insurance Code and the Deceptive Trade Practices Act. He claimed, inter alia, that Allstate had misrepresented the terms of his policy, both before he purchased it and during the adjustment of his hail damage claim; denied his claim without performing a reasonable inspection of his roof; and refused to pay his claim after liability became reasonably clear. After an eight-day trial, the jury found in Reininger’s favor on his breach of contract, fraud, and statutory claims against Allstate. 2 It also found Allstate had knowingly engaged in unfair or deceptive acts or practices and assessed additional damages as a result of that finding. Finally, the jury awarded Reininger attorney’s fees. Reininger elected to recover on his statutory claims, and the trial court signed a judgment consistent with the jury’s verdict on Reininger’s claims under the Insurance Code, including its finding that Allstate had acted knowingly. Allstate filed a motion for judgment notwithstanding the verdict and alternative motion for new trial. Both motions were denied by operation of law. Allstate appealed. ANALYSIS Legal and Factual Sufficiency of Liability Findings In its fourth issue, Allstate contends the evidence is legally and factually insufficient to support the jury’s liability findings on Reininger’s Insurance Code claims. Because Allstate’s legal sufficiency complaint would, if meritorious, require rendition of judgment in Allstate’s favor, we will consider this issue first. See Maynard v. Booth, 421 S.W.3d 182 , 183 (Tex. App.—San Antonio 2013, pet. denied). 2 Reininger nonsuited his claims against Phillips during the trial. -4-  04-19-00443-CV Standard of Review and Applicable Law When an appellant challenges the legal sufficiency of the evidence supporting an adverse finding on which it did not have the burden of proof, it must show that no evidence supports the challenged finding. In re Estate of Matthews, 510 S.W.3d 106 , 117 (Tex. App.—San Antonio 2016, pet. denied). We review the evidence in the light most favorable to the verdict, crediting evidence favorable to the verdict if a reasonable factfinder could, and disregarding contrary evidence unless a reasonable factfinder could not. Id. Evidence is legally sufficient if it would allow reasonable people to reach the verdict under review. Id. When a party challenges the factual sufficiency of a finding on which it did not have the burden of proof, it must show the evidence is insufficient to support the finding. Id. In a factual sufficiency challenge, we review all of the evidence but may not reverse the judgment unless the evidence that supports the jury’s verdict is so weak as to make the challenged findings clearly wrong and manifestly unjust. Id. In reviewing both legal and factual sufficiency challenges, we are mindful that the jury has the sole authority to resolve conflicts in the evidence, determine the credibility of the witnesses, and decide the weight to be given to each witness’s testimony. United Parcel Serv., Inc. v. Rankin, 468 S.W.3d 609 , 615 (Tex. App.—San Antonio 2015, pet. denied). We may not substitute our own judgment for the jury’s, even if the evidence would clearly support a different result. Id. Application The court’s charge on Reininger’s Insurance Code claims asked the jury whether Allstate “engage[d] in any unfair or deceptive act or practice that caused damages to Peter Reininger.” The unfair or deceptive acts the jury considered were whether Allstate: (1) refused to pay Reininger’s claim without conducting a reasonable investigation; (2) misrepresented a material fact or policy provision related to the coverage at issue; (3) failed to attempt in good faith to effectuate a prompt, -5-  04-19-00443-CV fair, and equitable settlement of the claim when Allstate’s liability had become reasonably clear; (4) failed to promptly provide a reasonable explanation of the factual and legal basis for denying the claim; or (5) failed to affirm or deny coverage within a reasonable time. See TEX. INS. CODE ANN. § 541.060. 1. Unfair or deceptive act or practice Reininger testified he disagreed with Phillips’s conclusion that the hail damage to the roof was merely cosmetic. He also testified that he voiced this disagreement to Phillips on the day of the inspection. The undisputed evidence showed that if an insured disagrees with an adjustor’s finding of cosmetic damage, Allstate’s policies require the adjustor to request a report from a structural engineer. See State Farm Cas. Co. v. Simmons, 963 S.W.2d 42 , 45 (Tex. 1998) (insurance company’s internal documents can support finding that its investigation of a claim was deficient). It is further undisputed that Phillips did not request a report from a structural engineer despite Reininger’s disagreement with the finding of only cosmetic damage. See id. This evidence supports a finding that Allstate was required to, but did not, request a report from a structural engineer regarding Reininger’s hail damage claim before denying the claim. While Phillips testified Reininger never told him he disagreed with the cosmetic damage conclusion, the jury was free to disbelieve that testimony. See LaSalle Pipeline L.P. v. Donnell Lands, L.P., 336 S.W.3d 306 , 319 (Tex. App.—San Antonio 2010, pet. denied). Additionally, Reininger’s claims adjusting expert, Earl Stigler, testified that it is unreasonable for an adjustor investigating hail damage to a roof not to inspect inside a home, even if the homeowner says it is not necessary. He explained, “Many times homeowners do not see [interior damage]. Many times they do not know where to look.” He testified that a reasonable adjustor would ask to look inside and, if the homeowner refused to allow entry, “would document that they declined my inspection.” It is undisputed that Phillips did not inspect the interior of -6-  04-19-00443-CV Reininger’s home. Phillips testified that he did not do so because Reininger reported that there was no interior damage. However, Reininger testified that he never told Phillips he could not come in the house and that he would have allowed an inspection of the interior if Phillips had asked to perform one. The jury was free to believe Reininger’s testimony over Phillips’s. See id. This evidence supports a finding that Phillips should have inspected the interior of Reininger’s home, but did not do so. Based on this evidence, a reasonable factfinder could conclude Allstate refused to pay Reininger’s claim without conducting a reasonable investigation. See In re Estate of Matthews, 510 S.W.3d at 117 . We cannot conclude that the jury’s finding that Allstate engaged in those acts is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. See id. As a result, the evidence is legally and factually sufficient to support the jury’s finding that Allstate engaged in an unfair or deceptive act or practice. See id.; see also TEX. INS. CODE § 541.060. 2. Producing cause Allstate argues its actions cannot be a producing cause of Reininger’s damages because the evidence conclusively shows the cosmetic damage exclusion bars Reininger from recovering benefits under the policy. It therefore contends it cannot be liable for Reininger’s Insurance Code claims because it merely denied a claim that was not covered. See Republic Ins. Co. v. Stoker, 903 S.W.2d 338 , 341 (Tex. 1995). We agree that in general, an insurer does not violate the Insurance Code by denying a claim that is not covered by the policy. See USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479 , 496 (Tex. 2018); but see id. at 500–01 (recognizing an insured might, under “extreme” circumstances, be entitled to damages based on “an injury independent of a right to benefits”). However, we disagree that the evidence conclusively shows Reininger’s claim was not covered. Like all -7-  04-19-00443-CV contracts, an insurance policy must be interpreted according to its plain language and without the insertion of language or provisions the parties did not include in their agreement. Great Am. Ins. Co. v. Primo, 512 S.W.3d 890 , 892–93 (Tex. 2017). Here, the exclusion provides that the policy does not cover cosmetic hail damage, “including but not limited to, indentations, dents, distortions, scratches, or marks, that change the appearance of a metal roof surface” (emphasis added). The exception to that exclusion provides that the exclusion does not apply “to sudden and accidental direct physical damage . . . caused by hail that results in water leaking through the metal roof surface.” This language provides only that the policy does not cover hail damage that merely “change[s] the appearance of a metal roof surface.” Nothing in the plain language of either the exclusion or its exception indicates that the policy only covers hail damage that creates a hole in the roof on impact, and Allstate’s assertion to the contrary inserts language into the contract that the parties did not use. See id. (“A contract’s plain language controls, not what one side or the other alleges they intended to say but did not.”) (internal quotation marks omitted). As a result, we reject Allstate’s assertion that the terms of the policy required Reininger to present evidence that the hailstorm created an immediate opening in the roof. Stigler testified that the damage he observed on Reininger’s roof was structural, not cosmetic. He opined that the dents, indentations, and marks Phillips concluded were not covered by the policy “exceed[ed] cosmetic damage” because they reduced the roof’s ability to shed water and therefore diminished its useful life. He also explained to the jury that when hail hits the seams of a metal roof, “you’ve got this flat surface on top trying to seal against something that’s not flat and you’ve got these gaps. And that’s where the water came out.” He showed the jury an “end seam that’s . . . been bent over by hail,” and testified, “That’s structural damage. That’s not cosmetic. . . . That seam has been compromised and it’s going to leak.” Stigler also identified hail damage to a ridge cap on Reininger’s roof to show that “the [roof] system has failed,” as well as -8-  04-19-00443-CV several roof seams that had been compromised by hail and were no longer watertight. Stigler’s testimony is consistent with evidence showing that because of the hail damage to the roof, Reininger has not been able to find another insurance company that is willing to write a policy on his home. Allstate argues that even if the roof damage is structural, it is insufficient to support the jury’s liability and damages findings because Reininger did not segregate his recoverable damages from his unrecoverable damages. This argument seems to assume that Reininger did not sufficiently tie his home’s interior water damage to the hail damage to the roof. Again, we disagree. Both Reininger and Nancy testified that in the fourteen years they had lived in their home, they never saw any water leaks until the first large rain event after the 2016 hailstorm. Additionally, Stigler showed the jury “probable points of water intrusion” into Reininger’s home that he attributed to the 2016 hail damage and which he testified were directly above the locations of the interior leaks. He also testified that the water damage he observed inside Reininger’s home was consistent with a “failing” metal roofing system. While Allstate’s expert witnesses testified the water intrusion into Reininger’s home was due to non-covered perils like normal wear-and-tear and lack of maintenance, Stigler testified that the interior damage he observed in Reininger’s home was more consistent with “a recent event” than a wear-and-tear issue. Moreover, the jury was free to conclude Allstate’s experts’ conclusions were not credible, especially in light of Nancy’s and Reininger’s testimony that the leaks did not appear until after the hailstorm. See Bay Rock Operating Co. v. St. Paul Surplus Lines Ins. Co., 298 S.W.3d 216 , 229–30 (Tex. App.—San Antonio 2009, pet. denied). Allstate also argues Stigler’s testimony was conclusory and therefore constitutes no evidence. An expert’s opinion is conclusory “if no basis for the opinion is offered, or the basis offered provides no support.” City of San Antonio v. Pollock, 284 S.W.3d 809 , 818 (Tex. 2009). -9-  04-19-00443-CV Stigler testified that his investigation of the roof was consistent with industry standards, and noted that the damage he observed on Reininger’s roof was consistent with both the reported size of the hailstones from the 2016 hailstorm and with damage from similar hailstorms he had seen during his 36 years as an adjustor. He explained how a metal roof is constructed and why hail damage to the seams of a metal roof compromises its ability to prevent water intrusion, and he identified several examples of that kind of damage on Reininger’s roof. With regard to the interior damage in Reininger’s home, he explained why the pattern of the water stains he observed showed that the damage was not due to wear-and-tear, including why those stains and the water intrusion that caused them could not be attributed to pre-hailstorm spots of rust on Reininger’s roof. Because Stigler described the facts upon which he relied and explained his reasoning process in examining those facts, his opinions were not conclusory. Gulley v. State Farm Lloyds, 461 S.W.3d 563 , 571– 72 (Tex. App.—San Antonio 2014, pet. denied). Based on this evidence, a reasonable factfinder could have found that Allstate’s unreasonable investigation caused it to wrongfully deny a valid claim and therefore caused damage to Reininger. 3 See Menchaca, 545 S.W.3d at 496–97; see also In re Estate of Matthews, 510 S.W.3d at 117 . Moreover, the evidence on this point was not so weak as to make the jury’s finding in Reininger’s favor manifestly wrong and unjust. See In re Estate of Matthews, 510 S.W.3d at 117 . 3. Bona fide coverage dispute Allstate contends, however, it cannot be liable for Reininger’s statutory claims because the evidence shows only a bona fide coverage dispute. “Evidence that shows only a bona fide coverage 3 Allstate frames the causation analysis as requiring evidence of “producing cause.” However, the court’s charge simply asked the jury to consider whether Allstate’s unfair or deceptive acts “caused damages to Peter Reininger” without defining any specific causation standard. Because Allstate did not object to the charge on this basis, we must review the evidence in light of the question as submitted. See Osterberg v. Peca, 12 S.W.3d 31 , 55 (Tex. 2000). - 10 -  04-19-00443-CV dispute does not, standing alone, demonstrate bad faith. Nor is bad faith established if the evidence shows the insurer was merely incorrect about the factual basis for its denial of the claim, or about the proper construction of the policy.” Southland Lloyds Ins. Co. v. Cantu, 399 S.W.3d 558 , 569 (Tex. App.—San Antonio 2011, pet. denied) (internal quotation marks and citations omitted). However, whether an insurer acted in bad faith is a fact issue for the jury and “‘focuses not on whether the claim was valid but on the reasonableness of the insurer’s conduct’ in handling the claim.” Allison v. Fire Ins. Exch., 98 S.W.3d 227 , 248 (Tex. App.—Austin 2002, pet. granted, judgm’t vacated w.r.m.) (quoting Lyons v. Miller Cas. Ins. Co., 866 S.W.2d 597 , 601 (Tex. 1993)). One of our sister courts recently held that even if a bona fide coverage dispute exists, that dispute does not excuse an insurer’s failure to conduct a reasonable investigation of a claim. Certain Underwriters at Lloyd’s, London v. Prime Nat. Res., Inc., No. 01-17-00881-CV, 2019 WL 7044667 , at *17 (Tex. App.—Houston [1st Dist.] Nov. 26, 2019, no pet.). Here, we have already held that the evidence supports a finding that Phillips was required to—but did not—request a report from a structural engineer before denying Reininger’s claim. See id. Reininger also presented evidence that a second Allstate adjustor told Reininger that “he didn’t think he was going to find anything worse than Mr. Phillips did,” even though that adjustor had not yet inspected the property. Finally, that the evidence showed Allstate closed the file on Reininger’s claim two days after he cancelled the second inspection, even though the file indicated he had told Allstate he wanted to reschedule it. Because the cosmetic damage investigation was still pending, Stigler testified it was unreasonable for Allstate to have closed the file before Reininger either: (1) affirmatively indicated he wanted to abandon his claim; or (2) failed to respond to Allstate’s scheduling inquiries for at least 90 days. On this point, Stigler told the jury, “[W]e’re the adjustors. We’re the professionals. We’re the ones that are supposed to make sure we take care of everything.” - 11 -  04-19-00443-CV As an appellate court, we are prohibited from reweighing the evidence or substituting our opinion for the jury’s, even if the evidence would clearly support a different result. State Farm Lloyds v. Nicolau, 951 S.W.2d 444 , 450 (Tex. 1997); Rankin, 468 S.W.3d at 615 . The evidence here, when considered in the light most favorable to the verdict, would allow a reasonable factfinder to conclude that Allstate’s denial and closure of Reininger’s claim without further investigation was unreasonable. See Simmons, 963 S.W.2d at 45; Nicolau, 951 S.W.2d at 450. Additionally, this evidence is not so weak as to make a finding in Reininger’s favor manifestly unjust. In re Estate of Matthews, 510 S.W.3d at 117 . As a result, we reject Allstate’s contention that this case presents only a bona fide coverage dispute. 4. Conclusion For these reasons, the evidence is legally and factually sufficient to support the jury’s finding that Allstate committed unfair or deceptive acts that caused damages to Reininger. We therefore overrule Allstate’s fourth issue. 4 Submission of Cosmetic Damage Exclusion In its first issue, Allstate challenges the trial court’s submission of Question 1, which asked the jury to determine whether Allstate and Reininger agreed to include a cosmetic damage exclusion in Reininger’s policy. In its second issue, it complains the trial court erred by refusing to submit Allstate’s proposed question and instruction on whether the cosmetic damage exclusion applied to Reininger’s claim. In its third issue, it argues the trial court abused its discretion by submitting Question 2 of the charge, which asked the jury to determine whether the damage to 4 Allstate’s fourth issue includes a sub-issue arguing the trial court abused its discretion by submitting Reininger’s statutory claims to the jury. Because we have held the evidence was sufficient to support the jury’s findings on those claims, we reject Allstate’s challenge to the submission of those issues. See TEX. R. CIV. P. 278 (“The court shall submit the questions, instructions and definitions . . . which are raised by the written pleadings and the evidence.”). - 12 -  04-19-00443-CV Reininger’s roof was cosmetic, but only if it had already determined the policy excluded cosmetic damage. Standard of Review and Applicable Law We review a trial court’s submission of jury questions and instructions for abuse of discretion. Bexar Cty. Appraisal Dist. v. Abdo, 399 S.W.3d 248 , 257–58 (Tex. App.—San Antonio 2012, no pet.). While a trial court has broad discretion in submitting questions to a jury, it must ensure that its charge submits disputed, controlling issues of fact to the jury. Id. at 258 . However, to preserve a claim of charge error for our review, the complaining party must plainly and timely make the trial court aware of the complaint and obtain a ruling. TEX. R. APP. P. 33.1; In re B.L.D., 113 S.W.3d 340 , 349–50 (Tex. 2003). Furthermore, we may not reverse based on charge error unless the error probably caused the rendition of an improper judgment. TEX. R. APP. P. 44.1; Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753 , 757 (Tex. 2006). To determine whether an error probably caused the rendition of an improper judgment, we examine the entire record. Urista, 211 S.W.3d at 757. A jury finding that does not result in an adverse judgment against the appellant is generally harmless, even if the issue was submitted erroneously. See, e.g., Marinecorp Int’l, Ltd. v. Chopper Grp., LLC, No. 01-14-00707-CV, 2016 WL 1382168 , at *8 (Tex. App.—Houston [1st Dist.] Apr. 7, 2016, pet. denied) (mem. op.); GuideOne Lloyds Ins. Co. v. First Baptist Church of Bedford, 268 S.W.3d 822 , 839 (Tex. App.—Fort Worth 2008, no pet.). Application Reininger notes—and Allstate does not dispute—that Questions 1 and 2 represent the jury’s findings on Reininger’s breach of contract claim and that Allstate’s proposed question also goes to the breach of contract claim. Because Reininger elected to recover on his Insurance Code claims rather than his common-law breach of contract claim, the jury’s breach of contract findings are not reflected in the final judgment. Because the jury’s breach of contract findings did not result - 13 -  04-19-00443-CV in a judgment against Allstate, we cannot say any error in the submission of those issues directly led to the rendition of an improper judgment. See TEX. R. APP. P. 44.1; Marinecorp Int’l, 2016 WL 1382168 , at *8. Allstate argues that while the challenged portions of the jury charge are not directly reflected in the judgment, it was nevertheless harmed by the submission of those issues because the cosmetic damage exclusion “was central to [its] defense.” It claims the court’s charge as submitted confused and misled the jury about how to resolve all of Reininger’s claims, including the claims that form the basis of the judgment. It expands on this argument in its reply brief, contending that the jury’s findings on Reininger’s Insurance Code claims “are intertwined with” its finding that the cosmetic damage exclusion was not part of the policy. Allstate claims the submission of these issues was therefore harmful because those issues implicate a critical, contested issue: Allstate’s defense that the cosmetic damage exclusion precluded recovery for Reininger on any of his claims. See Thota v. Young, 366 S.W.3d 678 , 687 (Tex. 2012). While Allstate frames this issue as a harm analysis, we conclude it rests in an objection to the submission of these issues. As a result, Allstate’s complaint on this issue is not preserved for our review unless it raised that objection in the trial court “specifically enough to support the conclusion that [the] trial court was fully cognizant of the ground of complaint and deliberately chose to overrule it.” Hamid v. Lexus, 369 S.W.3d 291 , 296 (Tex. App.—Houston [1st Dist.] 2011, no pet.). It was also required to raise that objection before the court read the charge to the jury. TEX. R. CIV. P. 272; Cont’l Cas. Co. v. Baker, 355 S.W.3d 375 , 383 (Tex. App.—Houston [1st Dist.] 2011, no pet.). The first time Allstate specifically argued that the submission of the cosmetic damage exclusion was the keystone of its entire defense was in its post-judgment motion, long after the charge was read to the jury. The only objections Allstate timely asserted to Question 1 were: (1) it was conclusively negated by the evidence; and (2) one of its instructions constituted - 14 -  04-19-00443-CV an improper comment on the weight of the evidence. Because the arguments Allstate timely raised in the trial court do not comport with the argument it raises here, it waived its complaint that the submission of Question 1 confused or misled the jury. See TEX. R. CIV. P. 272; Baker, 355 S.W.3d at 383 . We hold Allstate also waived this complaint about the trial court’s submission of Question 2 and its refusal to submit Allstate’s competing proposed question. Both Question 2 and Allstate’s proposed question asked the jury to consider whether the cosmetic damage exclusion applied. Allstate described its proposed question to the trial court as “our counter-proposal to [Question] No. 2.” Because both questions involved the same issue, the trial court asked Allstate to explain how they differed. In response, Allstate argued: (1) its proposed question used the applicable language from the policy and Question 2 did not; (2) Allstate’s proposed question asked the jury to consider the cosmetic damage exclusion unconditionally, while Question 2 instructed the jury not to consider the exclusion unless it had already found the parties agreed to include it in the policy; and (3) Question 2 constituted an improper comment on the weight of the evidence. However, Allstate did not argue, as it does on appeal, that Question 2’s conditional submission of the cosmetic damage exclusion could potentially mislead or confuse the jury during its consideration of Reininger’s non-contract claims. Because Allstate did not timely assert that argument in the trial court, it waived it. See TEX. R. CIV. P. 272; Baker, 355 S.W.3d at 383 . We conclude Allstate has not properly preserved its complaints about the submission of Questions 1 and 2 or the trial court’s refusal to submit its proposed question. TEX. R. APP. P. 44.1; TEX. R. CIV. P. 272; Baker, 355 S.W.3d at 383 . We therefore overrule its first three issues. Whether Allstate “Knowingly” Violated the Insurance Code In its fifth issue, Allstate argues the evidence is legally and factually insufficient to support the jury’s finding that it knowingly violated the Insurance Code. - 15 -  04-19-00443-CV Standard of Review and Applicable Law The Insurance Code permits a plaintiff who successfully asserts a claim that an insurer committed an unfair or deceptive act or practice to recover treble damages if he shows “the defendant knowingly committed the act complained of.” TEX. INS. CODE ANN. § 541.152(b). An insurer acts “knowingly” if it has “actual awareness of the falsity, unfairness, or deceptiveness of the act or practice on which” the claim for damages is based. TEX. INS. CODE ANN. § 541.002(a). “Actual awareness may be inferred if objective manifestations indicate that a person acted with actual awareness.” Id. To demonstrate the evidence is legally insufficient to support the jury’s finding that it acted knowingly, Allstate must show that no evidence supports that finding. In re Estate of Matthews, 510 S.W.3d at 117 . To show the evidence is factually insufficient, it must show the evidence is so weak as to make the finding clearly wrong and unjust. Id. Application Allstate argues there is no evidence to support the jury’s finding that it knowingly violated the Insurance Code. In response, Reininger points to evidence showing Allstate: (1) falsely represented that his Allstate policy would be “apples to apples” with his Liberty Mutual policy; (2) did not explain the distinction between the binder and the full policy; and (3) slipped the cosmetic damage exclusion into his policy without his knowledge. We agree with Allstate. As explained above, the evidence supports a finding that certain actions Allstate took during its handling of Reininger’s claim were unreasonable. However, evidence that a party acted unreasonably, without more, is not sufficient to show that it acted knowingly. See TEX. INS. CODE § 541.002(a). Even when viewing the record in the light most favorable to the jury’s verdict, we see nothing to indicate Allstate had “actual awareness of the - 16 -  04-19-00443-CV falsity, unfairness, or deceptiveness of the” specific unreasonable settlement acts upon which we affirmed the jury’s underlying finding of liability. See id. The acts Reininger points to in his brief as evidence of knowing conduct also do not support the jury’s finding that Allstate knowingly engaged in unfair or deceptive acts. Assuming, without deciding, that the “apples to apples” representation constituted a violation of the Insurance Code, there is no evidence that it rose to the level of a knowing violation. See id. The evidence shows Reininger told Losoya he wanted his Allstate policy to be the same as his Liberty Mutual policy— which did not include a cosmetic damage exclusion—and that Losoya stated Allstate could satisfy that request. However, it is undisputed that Reininger neither showed his Liberty Mutual policy to Losoya nor specifically told him that the policy did not include a cosmetic damage exclusion. Because there is no evidence that Losoya knew the Liberty Mutual policy did not contain the cosmetic damage exclusion, his failure to note that distinction between the two policies does not support a finding that he had actual awareness of any falsity, unfairness, or deception in his statements. See id. The evidence also shows Reininger asked Losoya if his roof would be covered for hail damage under an Allstate policy and Losoya responded, “Yes, sir, Mr. Reininger, you are. You pay [a] 1 percent [deductible].” Reininger also points to evidence showing “it is important” for Allstate agents “to warn customers about the cosmetic damage exclusion.” However, even if we assume Losoya’s failure to mention the cosmetic damage exclusion in response to Reininger’s question constituted a violation of the Insurance Code, we have found no evidence to support a finding that Losoya acted with actual awareness of the falsity, unfairness, or deceptiveness of his actions. See id. At most, the evidence shows Losoya behaved carelessly or unreasonably, which is not sufficient to support an award of additional statutory damages under the Insurance Code. See id. - 17 -  04-19-00443-CV There is also no evidence to support a finding that Allstate “slipped” the cosmetic damage exclusion into Reininger’s policy with actual awareness of any falsity, unfairness, or deceptiveness. See id. While Reininger’s brief points to Texas Department of Insurance (“TDI”) complaints asserting similar claims against Allstate as support for the jury’s finding that it acted knowingly in this case, Reininger relied on those complaints for impeachment only—those complaints were not admitted into evidence and are not included in the appellate record. In addition, Reininger did not present any evidence showing the TDI found those complaints were meritorious or otherwise resolved them against Allstate. In this novel situation, we decline to hold that allegations in a non-party’s administrative complaint in a different dispute constitute competent evidence that Allstate knowingly deceived Reininger in this case. Finally, witness testimony established that Allstate and its agents internally distinguish between a “binder” and a full “policy” because a policy contains more detailed information that is not explained in a binder. The evidence further shows that in an email to Reininger, Losoya used the word “policy” three times to describe the document the parties now agree is merely the binder. The binder itself, however, indicated the policy was subject to “the terms and conditions of the regular policy forms of [Allstate] at present in use.” As a result, even if Losoya’s failure to distinguish between a policy and a binder violated the Insurance Code, there is no evidence to support a finding that this failure was a knowing act of falsity, unfairness, or deception. See TEX. INS. CODE § 541.002(a). For these reasons, we sustain Allstate’s fifth issue and reverse the portion of the trial court’s judgment awarding $135,765.54 in additional statutory damages to Reininger under section 541.152(b) of the Insurance Code. Because our reversal of this portion of the judgment substantially reduces the amount of damages awarded to Reininger, we also reverse the award of - 18 -  04-19-00443-CV attorney’s fees to Reininger and remand this cause for a new trial on attorney’s fees. See Barker v. Eckman, 213 S.W.3d 306 , 315 (Tex. 2006). Evidentiary Issues In its sixth issue, Allstate contends it was harmed by the trial court’s admission of irrelevant and/or unduly prejudicial evidence. Standard of Review and Applicable Law We review the trial court’s evidentiary rulings for abuse of discretion. Rankin, 468 S.W.3d at 624 . A trial court does not abuse its discretion unless its decision is arbitrary, unreasonable, or made without reference to guiding rules or principles. In re Estate of Denman, 362 S.W.3d 134 , 140–41 (Tex. App.—San Antonio 2011, no pet.). We will uphold a trial court’s evidentiary ruling if there is any legitimate basis for it. Drilex Sys., Inc. v. Flores, 1 S.W.3d 112 , 119–20 (Tex. 1999). “Errors in admission or exclusion of evidence are generally not reversible unless the appellant can show the whole case turns on the complained of evidence.” In re Estate of Denman, 362 S.W.3d at 141. Application Allstate argues the trial court abused its discretion by admitting the testimony of two of Reininger’s neighbors, Valerie Meade and Lonnie Blanchard. Allstate also contends the trial court abused its discretion by allowing Reininger to impeach its corporate representative with complaints other insureds filed against Allstate with the TDI. 1. Neighbors’ testimony Both Meade and Blanchard testified that they live on the same street as Reininger, saw large hail at their homes on the night of the hailstorm, and replaced their metal roofs after the hailstorm. Allstate argues this testimony constituted improper, harmful evidence of “the way neighbors’ claims were handled, even though those claims involved other homes, policies, and - 19 -  04-19-00443-CV insurers.” We note, however, that Allstate agreed to admit into evidence an email from Reininger to Losoya stating that multiple homes on Reininger’s street had either had their metal roofs replaced or were scheduled for replacement. Additionally, Reininger testified “[a]ll but three” of the twenty-five metal roofs on his street were replaced after the hailstorm, and Allstate has not challenged this testimony on appeal. Because Meade’s and Blanchard’s testimony about the replacement of their roofs is cumulative of other unchallenged, substantially similar evidence, Allstate has not shown it was harmed by any error in admitting that testimony. See Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131 , 144 (Tex. 2004); Grove v. Overby, No. 03-03-00700-CV, 2004 WL 1686326 , at *3 (Tex. App.—Austin July 29, 2004, no pet.) (mem. op.). We therefore overrule Allstate’s contention that the trial court committed reversible error by admitting Meade’s and Blanchard’s testimony. See Drilex, 1 S.W.3d at 119–20. 2. TDI complaints Allstate argues the trial court abused its discretion by allowing Reininger to impeach Allstate’s corporate representative, Stephan Tendorf, with previous complaints filed against Allstate with the TDI, as well as Allstate’s responses to those complaints. 5 However, the only harm Allstate identifies from Reininger’s use of the TDI matters is: (1) it may have influenced the jury’s finding that Allstate knowingly engaged in false, unfair, or deceptive acts; and (2) it was “unduly prejudicial.” As Reininger notes, Allstate did not object to the TDI matters on the basis that the material’s probative value was outweighed by its prejudicial effect. As a result, it waived that objection. TEX. R. APP. P. 33.1; Garza v. Garza, 217 S.W.3d 538 , 555 (Tex. App.—San Antonio 2006, no pet.). Moreover, to the extent the jury relied on the TDI matters to reach its finding that 5 Again, neither the TDI complaints nor Allstate’s responses were admitted into evidence. Moreover, although the record indicates those documents were displayed for the jury as a demonstrative, they were not included in the appellate record. - 20 -  04-19-00443-CV Allstate acted knowingly, we have already remedied that harm, if any, by reversing the portion of the trial court’s judgment that is based on that finding. Because Allstate has not shown the case as a whole turns on any error related to the TDI matters, we decline to reverse the rest of the judgment on that basis. See In re Estate of Denman, 362 S.W.3d at 141. For these reasons, we overrule Allstate’s contention that the trial court committed reversible error by allowing Reininger to impeach Tendorf with the TDI documents. Cumulative Error Doctrine In its final issue, Allstate argues the cumulative effect of the trial court’s alleged errors requires reversal. The cumulative error doctrine allows an appellate court to reverse a judgment if the trial court committed numerous errors that individually do not support reversal but “taken together may do so.” Rhey v. Redic, 408 S.W.3d 440 , 462 (Tex. App.—El Paso 2013, no pet.). Reversal on this basis is not appropriate unless the record as a whole demonstrates that “but for the alleged errors, the jury would have rendered a verdict favorable to [the appellant].” Pitman v. Lightfoot, 937 S.W.2d 496 , 537 (Tex. App.—San Antonio 1996, writ denied). After reviewing the entire record in this case, we conclude there is no cumulative error that supports a wholesale reversal of the trial court’s judgment. See Crescendo Invs., Inc. v. Brice, 61 S.W.3d 465 , 481 (Tex. App.—San Antonio 2001, pet. denied). CONCLUSION We affirm the portion of the trial court’s judgment awarding actual damages to Reininger under the Texas Insurance Code. We reverse the portion of the trial court’s judgment awarding additional statutory damages based on the jury’s finding that Allstate acted knowingly, and we render judgment for Allstate on that issue. Finally, in light of our reversal of the additional statutory - 21 -  04-19-00443-CV damages award, we reverse the trial court’s award of attorney’s fees to Reininger and remand this matter for a new trial on attorney’s fees. Beth Watkins, Justice - 22 -

2013-10-30 10:57:57.108118+00

223 P.3d 311 (2010) MERCY REGIONAL HEALTH CENTER, INC., Appellee, v. Jennifer L. BRINEGAR and Jason Brinegar, Appellants. No. 100,637. Court of Appeals of Kansas. January 22, 2010. *313 Jason E. Brinegar and Brian Carroll, of Galloway, Wiegers & Brinegar, P.A., of Marysville, for the appellants. Amy S. Lemley, of Foulston Siefkin LLP, of Wichita, for the appellee. Before MARQUARDT, P.J., PIERRON, J., and BUKATY, S.J. BUKATY, J. Jason Brinegar (Brinegar) appeals the trial court's award of attorney fees against him in favor of Mercy Regional Health Center, Inc. (Mercy). We affirm. This case began in October 2006, as a debt collection proceeding under Chapter 61 of the Kansas Code of Civil Procedure. Mercy sued Jason and Jennifer Brinegar to collect for services rendered in connection with a minor surgical procedure that was performed on their daughter at Mercy. Brinegar, who is an attorney, filed an answer on behalf of his wife and himself disputing the debt. He included with his answer a counterclaim on behalf of Jennifer and himself alleging Mercy violated the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq., and the Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. § 1692 (2006) et seq. Eventually, the Brinegars voluntarily dismissed their KCPA *314 and FDCPA claims. Then just prior to the scheduled trial, they agreed to a judgment against them for $1,230.57, the amount of the original hospital bill. Mercy sought to recover attorney fees against Brinegar only, and the parties went to trial on that sole issue. After holding a lengthy evidentiary hearing during which over 30 exhibits were admitted into evidence, the trial court prepared and filed a detailed journal entry awarding a judgment for attorney fees to Mercy under K.S.A. 50-634(e) and K.S.A. 60-211 against Brinegar. He appeals from that judgment. Essential Facts One of Brinegar's arguments that we address in this appeal requires a scrutiny of his intent at the time he filed the counterclaim with the court. Consequently, a somewhat detailed recitation of the facts leading up to and following that filing is necessary for an understanding of the issues. On October 20, 2005, the Brinegars' daughter underwent a scheduled minor surgery at Mercy. Jennifer took her daughter to Mercy for the surgery and signed the admissions documents. The admission documents contained the following statement relating to the agreement to pay for services: "10. AGREEMENT TO PAY FOR SERVICES AND ASSIGNMENT OF INSURANCE BENEFITS. In consideration of the admission, care, and treatment provided to the patient, the undersigned. . . agrees to pay Mercy Regional Health Center all charges for services rendered in accordance with its regular rates on this date. . . . "I hereby assign to Mercy Regional Health Center any and all medical benefits payable from any policy of insurance insuring the patient or person responsible for the patient's care . . . to be paid directly to Mercy to be applied to the charges for services rendered. I understand I am responsible for co-insurance payments, deductibles and/or any remaining balance." The Brinegar family had a health insurance policy through Blue Cross Blue Shield of Kansas (BCBS). The relevant portion of the Brinegars' policy relating to the allowable charges for covered services from a contracting provider stated as follows: "A. Contracting Providers of Blue Cross and Blue Shield of Kansas or another entity on behalf of Blue Cross and Blue Shield of Kansas or another entity on behalf of Blue Cross and Blue Shield of Kansas for other than Prescription Drugs or Sleep Studies. "The Contracting Provider Agreement between the provider and the Company or the provider and the other entity sets out the method the Company or other entity will use to determine allowable charges for covered services. Contracting Providers have agreed to accept the Company's or other entity's determination of Your benefits as payment in full for covered services, except that You are responsible for payment of: Deductible, Coinsurance, Copayment/Copay amounts, shared payment amounts, non-covered services, private room charges in excess of the allowable amount stated in Your Certificate, and amounts in excess of any other benefit limitations of Your Certificate." The total amount of the bill from Mercy for the services provided to the Brinegars' daughter came to $2,351.00. Apparently, this bill would have been the same amount for the particular services received, regardless of whether the patient was covered by Medicaid, private insurance, or was uninsured. Mercy submitted the bill to BCBS of Kansas. Based on its agreement with BCBS, Mercy was required to write off $1,120.43 of the charges. The remaining amount of $1,230.57 applied towards the Brinegars' deductible and became the Brinegars' responsibility to pay. On November 21, 2005, Mercy sent the Brinegars a bill for this balance of $1,230.57. The following month, Mercy sent a second bill to the Brinegars. Mercy later received a handwritten note from Brinegar. In the note, Brinegar wrote as follows: "If you really want me to pay this bill you are going to have to do much better than simply send such a general & undetailed statement. Further, I demand to be *315 informed of the amount Medicaid pays for this procedure/service. "In the alternative I will send you $600.00 to settle this account in full." Upon receiving Brinegar's letter, a Mercy account representative checked Medicaid eligibility. Apparently, the Brinegars' daughter did not qualify for Medicaid coverage. The account representative called Brinegar and left a number with his receptionist. Between January and April 2006, Mercy sent several notices to the Brinegars for the amount owing. At one point during this time, Brinegar called an account representative with Mercy and was very demeaning and rude. He demanded an itemized statement, demanded to know what Medicaid paid, and stated he was only going to pay Medicaid's amount even though his daughter did not qualify for Medicaid. When the representative stated she did not know and did not have that information without submitting the bill to Medicaid, Brinegar called her a liar. He also stated that Mercy would have to sue him to collect and that he had been down that road before. In April 2006, Mercy turned over the Brinegars' account to Kansas Counselors, Inc. (KCI), for collections. Brinegar then responded in a letter to KCI in which he disputed the debt and requested a verification of it. Brinegar is an attorney with the firm Galloway, Wiegers, and Heeney, P.A. He sent the letter in his capacity as his and his wife's attorney. At the end of his letter, he wrote: "[I]f your client insists on pursuing this matter by filing suit, we will demand depositions of ALL attending physicians as well as an administrator." KCI forwarded Brinegar's letter to Mercy, and the matter was referred to Grant Bannister, an attorney in Manhattan, Kansas. Bannister sent Brinegar a letter, along with an itemized hospital bill from Mercy, a remittance from BCBS, and patient claim details from BCBS. In the letter, Bannister told Brinegar that Mercy had declined his offer of $600. In a May 15, 2006, letter to Bannister, Brinegar wrote that he had not received verification of the hospital bill and that Bannister's letters had not been responsive to his requests for information. Brinegar further wrote: "You can pass along to your client that in the event that suit is filed, or even if the claim is reported to a credit bureau that they will be in for protracted litigation. It will be necessary to procure the depositions of the medical professionals involved in the procedure as well as administrative personnel. "In the alternative, I have repeatedly offered to settle the matter. However, your client appears unresponsive to such. Settlement would only make sense as a collection agency will take forty percent. Why not simply settle this matter for sixty percent and ensure the collection without the effort and expense of the litigation described above." Mercy authorized the filing of suit against the Brinegars, and it sent the case to attorney Kurt Holmes. Before filing suit, Holmes sent a demand letter to the Brinegars. Brinegar then sent a letter to Holmes disputing the debt and demanding verification of the hospital bill. In addition, Brinegar invited Mercy to file suit against him so that he could pursue his FDCPA counterclaim: "I have in the past made two offers to settle this account, both of which have been ignored. I have concluded that your client would rather litigate the matter than settle. Therefore, please file suit to move this matter along and then I can move forward with my counterclaim for failure to comply with the FDCPA and set up the Dr. and administrator for a deposition. If your client is amenable to settlement, please review my offer of 60% or $738.34 made on May 15, 2006." On September 21, 2006, Holmes responded to Brinegar's letter and sent him a verification of the debt. Holmes wrote that he had forwarded Brinegar's settlement offer to Mercy and would advise him as to Mercy's response. The verification was signed by Mercy's business office manager but was not notarized. In October 2006, Mercy sued the Brinegars for $1,230.57, plus interest and costs, in *316 a Chapter 61 debt collection proceeding. The Brinegars filed an answer and counterclaim to Mercy's petition. The defenses included in the answer were waiver, failure to mitigate, accord and satisfaction, estoppel, and laches. In addition, the answer alleged that Mercy had failed to adequately and competently perform services as promised and that the Brinegars had received no value from the services provided by Mercy. In their counterclaim, the Brinegars alleged that Mercy had violated the KCPA and FDCPA and asked for an award of actual and statutory damages, costs, and attorney fees. In addition, the Brinegars requested a jury trial. Brinegar, in his capacity as an attorney, signed the answer and counterclaim. On October 31, 2006, Brinegar faxed the answer and counterclaim from his law firm to Holmes. "GAME ON!" was written in the comments section on the fax cover sheet. On November 15, 2006, attorney Matthew Hesse wrote Brinegar and offered to settle the account for $1,000. Hesse was in-house counsel for Via Christi Health System, of which Mercy was an affiliate member. In his letter, Hesse stated that Mercy's decision not to accept his earlier offers would not rise to the level of a KCPA violation. Hesse further stated: "You are probably aware that the [KCPA] cuts both ways on attorney's fees. See, K.S.A. 50-634. The prevailing party can request reimbursement of fees. Before this enters the `protracted litigation stage,' it behooves both parties to discuss this matter." In response to Hesse's letter, Brinegar left Hesse a voicemail in which he stated that the "$1,000" offer was unacceptable and "let's just have some fun with it." At that point, Hesse hired Jay Fowler, a partner at Foulston Siefkin, to defend the counterclaims and prosecute the debt collection. Hesse had previously hired attorney Curt Loub to enter an appearance in the case and to request a 10-day extension to respond to the Brinegars' counterclaim. Fowler filed a reply to the Brinegars' counterclaim and maintained that Mercy was entitled to attorney fees and expenses under K.S.A. 60-211, K.S.A. 50-634 of the KCPA, and 15 U.S.C. § 1692k(a)(3) (2006) of the FDCPA. Brinegar's law firm had an associate named Elizabeth Hiltgen. She had signed several documents on behalf of the Brinegars that were related to discovery and filed with the court. After filing answers to the Brinegars' interrogatories, Fowler wrote to Hiltgen and stated that there was no basis for either a KCPA claim or an FDCPA claim and reminded her that the Brinegars could end up being responsible for Mercy's attorney fees. Fowler urged Hiltgen to read a 2001 annotation article entitled "What Constitutes `Debt Collector' for Purposes of Fair Debt Collection Practices Act" at 173 A.L.R. Fed. 223. Finally, Fowler offered to settle the case for $1,230.57, plus the $53 filing fee. Hiltgen responded to Fowler's letter saying she would be filing an amended petition to include Holmes and KCI in order to preserve the FDCPA claim. She reminded Fowler that he had yet to provide her with answers to production for documents. Further, she told Fowler that his offer to settle the case was denied and that she would need to depose the treating physician, admission coordinator, and billing clerk at Mercy. Fowler wrote back to Hiltgen and enclosed responses to the Brinegars' requests for production. Moreover, Fowler pointed out that based on the promise to pay and the Brinegars' contract with BCBS, there was no viable KCPA claim. Finally, on the matter of depositions, Fowler stated that "K.S.A. 61-3105 limits the use of depositions in Chapter 61 cases to only those instances where the deposition is necessary to preserve testimony for trial and the use of the deposition as appropriate pursuant to the criteria set out in K.S.A. 61-3105(b)." Hiltgen then communicated an offer to settle the case for $850 to Fowler. Mercy declined the offer. In a letter dated January 18, 2007, Fowler again explained the reasonableness of Mercy's charges, pointed out the risk to the Brinegars for an adverse judgment for attorney fees and costs, and again offered to settle for $1,230.57, the amount of the original claim plus the $53 filing fee. In January 2007, Hiltgen, on behalf of the Brinegars, moved for leave to amend their counterclaim to add defendants KCI and *317 Holmes and to "omit" the FDCPA counterclaim against Mercy. The trial court granted the motion to withdraw the counterclaim against Mercy but denied the motion to amend it. The Brinegars appealed that decision. Mercy objected to the notice of appeal and argued that a ruling on a motion to amend is not appealable in a Chapter 61 proceeding. Brinegar eventually withdrew his notice of appeal. In January 2008, attorney William O'Keefe entered an appearance for the Brinegars and soon thereafter notified the trial court that the Brinegars were dropping the demand for a jury trial. In February 2008, O'Keefe, on behalf of the Brinegars, moved to amend the pleadings. The motion stated that the Brinegars would drop all counterclaims against Mercy and stipulate that they owed $1,230.57 to Mercy. Moreover, the Brinegars requested to change their defenses of accord and satisfaction, estoppel, laches, and waiver to the defense of clean hands. The trial court granted the motion to amend the pleadings and entered judgment in favor of Mercy for $1,230.57, plus prejudgment interest at the rate of 10%. The case then went to trial on the remaining issue of Mercy's request for attorney fees under K.S.A. 60-211, K.S.A. 50-634, and 15 U.S.C. § 1692k(a)(3). Mercy sought attorney fees in the amount of $17,095.95, plus costs, including statutory witness fees and mileage. Amy Lemley, of Foulston Siefkin, represented Mercy during the trial. At the beginning of trial, Lemley reiterated that the attorney fee request was against Jason Brinegar, and the trial court excused Jennifer Brinegar from attending the trial. Shortly thereafter the trial court issued its journal entry granting judgment in favor of Mercy against the Brinegars, jointly and severally, for $1,230.57 plus interest and costs. Additionally, it entered judgment against Jason Brinegar alone in the amount of $8,318.50 for attorney fees under K.S.A. 60-211 and K.S.A. 50-634. The court determined that Mercy was not entitled to attorney fees under 15 U.S.C. § 1692k(a)(3) of the FDCPA. Brinegar moved for a new trial or to alter or amend the judgment under K.S.A. 60-259, which was denied. Attorney Fees Under K.S.A. 60-211 Brinegar offers two reasons why the trial court erred in awarding attorney fees under K.S.A. 60-211:(1) The trial court failed to identify any pleading that violated K.S.A. 60-211(c); and (2) there was no factual basis to support a determination that any pleading was done for an improper purpose. A court may not award attorney fees absent statutory authority or an agreement by the parties. Brennan v. Kunzle, 37 Kan.App.2d 365, 392-93, 154 P.3d 1094, rev. denied 284 Kan. 945 (2007). Whether the requisite authority exists is a question of law over which appellate review is unlimited. Idbeis v. Wichita Surgical Specialists, 285 Kan. 485, 490, 173 P.3d 642 (2007). Brinegar's arguments on this issue require interpretation of K.S.A. 60-211. This interpretation of a statute also presents a question of law over which appellate courts have unlimited review. Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271, 202 P.3d 7 (2009). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Hall v. Dillon Companies, Inc., 286 Kan. 777, 785, 189 P.3d 508 (2008). An appellate court's first task is to "`ascertain the legislature's intent through the statutory language it employs, giving ordinary words their ordinary meaning.' [Citation omitted.]" State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009). In addition to the statutory interpretation questions involved here, Brinegar's arguments require an examination of the findings of fact made by the trial court. The court issued a lengthy journal entry containing those findings and its legal conclusions. We review the court's findings of fact to determine if they are supported by substantial competent evidence and are sufficient to support the trial court's conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. *318 Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009). An appellate court has unlimited review of the trial court's conclusions of law. Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915-16, 157 P.3d 1109 (2007). K.S.A. 60-211 provides as follows: "(a) Every pleading, motion and other paper provided for by this article of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, and the attorney's address and telephone number shall be stated. A pleading, motion or other paper provided for by this article of a party who is not represented by an attorney shall be signed by the party and shall state the party's address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by an affidavit. "(b) The signature of a person constitutes a certificate by the person that the person has read the pleading, motion or other paper and that to the best of the person's knowledge, information and belief formed after an inquiry reasonable under the circumstances: "(1) It is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims, defenses and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and . . . . "(c) If a pleading, motion or other paper provided for by this article is not signed it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion or other paper provided for by this article is signed in violation of this section, the court, upon motion or upon its own initiative upon notice and after opportunity to be heard, shall impose upon the person who signed it or a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including reasonable attorney fees. A motion for sanctions under this section may be served and filed at any time during the pendency of the action but not later than 10 days after the entry of judgment." (Emphasis added.) We first address Brinegar's argument that the trial court failed to identify any pleading that violated K.S.A. 60-211. The argument lacks any merit. It is abundantly clear from a reading of the trial court's journal entry of judgment that it was the filing of the counterclaim and subsequent prosecution of it that brought on the sanctions. The decision mentions no other pleading that caught the court's ire. In conjunction with the above argument, Brinegar contends there is no statutory or case law authority that supports a finding that a pleading that was proper at the time it was filed can later result in sanctions under K.S.A. 60-211(c) because of conduct of the signer after the filing. We agree. The plain language of K.S.A. 60-211(c) allows a trial court to impose appropriate sanctions, which may include attorney fees, against a party or an attorney for signing pleadings, motions, and other papers filed with the court in violation of the statute. Under K.S.A. 60-211(c), it is this act of signing an improper pleading, motion, or other paper filed with the court that subjects the offender to sanctions. In determining whether sanctions should be awarded under this section, a court must focus its inquiry on whether the pleadings, motions, or other papers were in violation of the statute when they were signed and filed with the court. Federal court case law interpreting Rule 11 of the Federal Rules of Civil Procedure, upon which K.S.A. 60-211 is modeled, supports this interpretation. See Jones v. International Riding Helmets, Ltd., 49 F.3d 692, 695 *319 (11th Cir.1995) (In considering whether to award sanctions under Rule 11, the court's inquiry focuses only on the merits of the pleading gleaned from the facts and law known or available to the attorney at the time of filing.); Souran v. Travelers Ins. Co., 982 F.2d 1497, 1507 n. 12 (11th Cir.1993) (quoting Fed. R. Civ. Proc. 11, Advisory Committee Note) ("`The court is expected to avoid using the wisdom of hindsight and should test the signer's conduct by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was submitted.'"); Jackson v. Law Firm of O'Hara, Ruberg, et al., 875 F.2d 1224, 1229 (6th Cir.1989). We note that Rule 11 of the Federal Rules of Civil Procedure was amended in 1993 to change the triggering action for sanctions from "signing" to "presenting to the court a pleading, written motion, or other paper— whether by signing, filing, submitting, or later advocating it." Those amendments, however, are irrelevant to the issues here since K.S.A. 60-211 has no such language. To the extent then that the trial court here may have imposed sanctions on Brinegar under K.S.A. 60-211 for his conduct in prosecuting his counterclaim after he filed it, the court applied a wrong standard. The court appears to have done so since it discusses in detail the fact Brinegar continued to pursue his counterclaims for violation of the KCPA up until just before the scheduled trial. It appears the court may have imposed sanctions as a result of both the signing and the prosecution of the counterclaim. However, if the trial court reached the right result in determining that attorney fees are appropriate here under K.S.A. 60-211(c), we will uphold the decision even though the trial court assigned an erroneous reason or reasons for its decision. The reason given by the trial court for its ruling is immaterial if the result was correct. City of Arkansas City v. Bruton, 284 Kan. 815, 848-49, 166 P.3d 992 (2007). Despite the trial court's repeated language critical of the way Brinegar prosecuted his counterclaim, the opinion also contains language indicating the court clearly understood the focus must be on the signing of the pleading before sanctions are authorized under K.S.A. 60-211. In discussing Brinegar's counterclaim for KCPA violations, the court stated: "Based on the plain language in [K.S.A. 60-211](c), sanctions, of at least some type, are mandatory when a pleading is signed in violation of the statute and/or an attorney violated the statue[statute] willfully, knowingly, and in bad faith. [Citation omitted.] In making that determination, the court should consider whether the evidence indicates that a claim asserted was without reasonable basis in fact and the claim was not asserted in good faith. [Citation omitted.] Trial courts retain discretion as to the type and degree of sanctions appropriate and are subject to and abuse of discretion standard. [Citations omitted.]" Then in referring again to the counterclaim for violation of the KCPA, the trial court appears to have applied this proper standard in rendering its finding that Brinegar brought the claim for an improper purpose when it stated: "The only logical justification in either presenting it or maintaining it was to attempt to leverage defendant's position against the original debt claim. While such ploys are unfortunately not always uncommon, they are an abuse of the legal system and a serious abuse when they are maintained for an extended period of time. Mr. Brinegar's gamble seriously raised the stakes of this otherwise straight forward debt case." The uncontroverted evidence presented to the trial court amply supports this finding that Brinegar brought his counterclaim for an improper purpose. First, there was the rude and demeaning attitude he displayed with employees and agents of Mercy who had contacted him about the bill. This is not unusual or sanctionable by itself. But then there were the letters from Brinegar threatening "protracted litigation" and threatening to depose hospital personnel so as to disrupt the functioning of the hospital, as well as the "GAME ON!" challenge to Mercy. Combined, all these facts provide ample evidence *320 the counterclaims were brought for the improper purpose of economically intimidating Mercy and pressuring it to compromise its billing or face significant legal costs. As set forth previously, a pleading, motion, or paper is in violation of K.S.A. 60-211(b)(1) if it is "presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." The evidence here suggests that is exactly what Brinegar intended and, in fact, accomplished. The trial court awarded Mercy the judgment for attorney fees under both K.S.A. 60-211 and the KCPA, more specifically K.S.A. 50-634. It then ordered the two awards to run concurrent with each other. Since we have concluded that the award was proper under K.S.A. 60-211, Brinegar's argument that the court erred in ordering fees under K.S.A. 50-634 is now moot. We need not consider it. Factors To Be Considered in Determining the Amount of Attorney Fees Brinegar next contends that the trial court failed to properly consider the relevant factors for determining attorney fees. The argument has no merit. KRPC 1.5(a) (2009 Kan. Ct. R. Annot. 460) of the Kansas Rules of Professional Conduct outlines the eight relevant factors to be considered in determining the reasonableness of an attorney fee. The trial judge specifically identified and then considered six of those factors that he thought pertained to the facts in this case. The court also identified other factors it considered and then outlined evidence it thought pertained to those factors. Further, we note the trial court apparently attempted to award attorney fees only for the time Mercy spent defending Brinegar's claim under the KCPA and not award attorney fees for time attributed solely to defense of the FDCPA claim. However, the court awarded attorney fees for time that could not be attributable to a specific claim because the claims were so intermingled in the litigation that a separation of the time attributable to each could not be accomplished. This is certainly appropriate. See DeSpiegelaere v. Killion, 24 Kan.App.2d 542, Syl. ¶ 2, 947 P.2d 1039 (1997). Brinegar further argues the trial court erroneously awarded attorney fees to Mercy for time spent litigating the attorney fees award. However, our Supreme Court stated in Moore v. St. Paul Fire Mercury Ins. Co., 269 Kan. 272, Syl. ¶ 2, 3 P.3d 81 (2000): "The primary purpose of the Kansas fee-shifting statute is to benefit the insured. Fees incurred litigating the amount of attorney fees to be awarded are recoverable under K.S.A. 40-256. The fact that the award of such fee ultimately rests in the insured's attorney being paid to litigate the fees is collateral and incidental to the primary purpose of indemnifying an insured for the cost of counsel in an action against the insurer." Although we are dealing with different attorney fees statutes here, the rationale expressed in Moore is applicable. While the award of attorney fees in this case results in Mercy's attorneys being paid to litigate the attorney fees issue, it is incidental to the primary purpose of the fee sanction which is to indemnify Mercy for a reasonable amount of attorney fees it incurred in defending against Brinegar's filing of a counterclaim for an improper purpose. Importantly, Mercy sought more than twice the amount of attorney fees than the trial court awarded. In reducing the judgment, the court very adequately set forth its reasons. The trial court is an expert regarding the award of attorney fees and can apply its own expertise in determining the reasonable value of those fees. An appellate court is also an expert on the reasonableness of attorney fees. However, an appellate court does not substitute its judgment for that of the district court on the amount of the attorney fees award unless in the interest of justice the appellate court disagrees with the trial court. Davis v. Miller, 269 Kan. 732, 750-51, 7 P.3d 1223 (2000). We find no basis to disagree in this case. *321 Brinegar's Motion to Compel Discovery Brinegar argues the trial court erred in denying or failing to rule on his motion to compel discovery. The Brinegars moved to compel Mercy to respond to one of their interrogatories requesting information relative to the Medicaid reimbursement rate for the procedures performed on the Brinegars' daughter. Apparently, Mercy had responded to the interrogatory by stating that the information was not relevant and was not likely to lead to discoverable information. The record before us contains no order in which the trial court specifically ruled on this motion. However, even had the trial court denied the motion, that denial would not be reversible error under the facts before us. In this appeal, Brinegar is requesting only that we reverse the award of attorney fees entered by the trial court. We fail to see how the specific amount that Medicaid would have paid for services would have affected that award. At trial, Brinegar was able to present his argument to the court that he pursued his KCPA claim based on his belief that the reasonable charges for the services provided to his daughter would be the lower amount that Medicaid would have paid. For purposes of the attorney fees issue, the exact amount of Medicaid reimbursement would not have significantly enhanced his argument. Attorney Fees on Appeal Lastly, we note that Mercy has filed motions requesting attorney fees and other expenses incurred in this appeal in the total amount of $16,636.75. Of this amount, $16,160 is for attorney fees and $476.75 is for assorted expenses for transcripts, copying, printing, court clerk fees, mileage, and tolls. Brinegar has filed no response. He has never questioned the time spent by Mercy's attorneys, the amount charged for it, or the other expenses listed. An appellate court has authority to award attorney fees under Supreme Court Rule 7.07(b) (2009 Kan. Ct. R. Annot. 61) on appeal in cases where the trial court had authority to award attorney fees. See Hodges v. Johnson, 288 Kan. 56, 74, 199 P.3d 1251 (2009). Mercy has requested an award of attorney fees on appeal under K.S.A. 60-211 and K.S.A. 50-634(e). A couple of significant points compel us to conclude it would not be appropriate to award of all of the attorney fees and expenses that Mercy requests on appeal. First, we note again at this point that the trial court awarded the amount of $8,318.50 to Mercy, roughly one half of the amount Mercy is requesting on appeal. The award was for attorney fees incurred during 1 year of protracted litigation. It included a trial which is recorded in a 210-page transcript. Second, we also note that while we are affirming the trial court's ruling that awarded attorney fees to Mercy based upon Brinegar's filing of a counterclaim for an improper purpose, Brinegar's appeal was not completely frivolous, particularly in light of the continuous reference by the trial judge in his opinion to the manner in which Brinegar prosecuted his counterclaim after he had signed and filed it with the court. As we stated, such activity is not sanctionable under K.S.A. 60-211. At the same time, this appeal stemmed from Brinegar's original abuse of the legal system. The costs incurred by Mercy on appeal are a part of the continuum of unfortunate and otherwise avoidable events caused by that improper conduct. Sanctions in some amount for the attorney fees expended by Mercy on appeal are certainly appropriate. We have examined the affidavits accompanying Mercy's motion and conclude that a proper fee to be awarded Mercy for its attorney fees and expenses incurred in this appeal is $8,300. Conclusion The district court's judgment in favor of Mercy Regional Health Center, Inc., against Jason Brinegar for attorney fees in the amount of $8,318.50 is affirmed. Mercy's motion for attorney fees in connection with this appeal is granted, and Mercy is awarded an additional amount of $8,300. Affirmed. *322 MARQUARDT, J., concurring in part and dissenting in part: I concur in part and respectfully dissent in part. I concur with the majority opinion that affirms the district court's award of attorney fees incurred by Mercy Regional Health Center, Inc. (Mercy), while the case was being litigated in the district court. I dissent from the majority opinion that only awarded approximately two-thirds of the amount requested for appellate attorney fees in spite of the conclusion that "Bringer brought his counterclaim for an improper purpose" in the first place. When it came to Mercy's request for attorney fees on appeal, the majority states that "this appeal stemmed from Bringer's original abuse of the legal system" and rationalizes the partial award upon examination of the affidavits without further explanation. This case from the beginning was baseless. There are more than sufficient facts to support the entire amount of appellate attorney fees requested. I would therefore award Mercy the $12,766.45 it requested.

2020-06-05 07:03:22.032222+00

https://efast.gaappeals.us/download?filingId=faf45555-73b0-4a8e-a341-2c8b40ba051a

SECOND DIVISION MILLER, P. J., MERCIER and COOMER, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. Please refer to the Supreme Court of Georgia Judicial Emergency Order of March 14, 2020 for further information at (https://www.gaappeals.us/rules). June 3, 2020 In the Court of Appeals of Georgia A20A0645. VILLALOBOS v. ATLANTA MOTORSPORTS SALES, LLC. MILLER, Presiding Judge. Soon after Jenry Villalobos bought a used pickup truck from Atlanta Motorsports Sales, LLC, the vehicle experienced mechanical issues, leading Villalobos to bring this lawsuit alleging fraud, rescission, revocation of acceptance, and violations of multiple Georgia statutes. Villalobos appeals from the trial court’s entry of a judgment on the pleadings, arguing that the trial court erred in concluding that his claims were precluded by the sales contract’s merger clause and a contractual disclaimer that he was purchasing the truck “as is.” We agree with the trial court that judgment on the pleadings was proper on Villalobos’ claims for rescission and fraud because he could not justifiably rely on oral misrepresentations that contradicted the terms of the contract. We also determine, however, that Villalobos properly stated a claim for revocation of acceptance, and so the entry of judgment on the pleadings was improper on this claim. We therefore affirm in part and reverse in part. On appeal from a grant of judgment on the pleadings, we conduct a de novo review of the trial court’s order to determine whether the undisputed facts appearing from the pleadings entitle the movant to judgment as a matter of law. The grant of a motion for judgment on the pleadings under OCGA § 9-11-12 (c) is proper only where there is a complete failure to state a cause of action or defense. For purposes of the motion, all well-pleaded material allegations by the nonmovant are taken as true, and all denials by the movant are taken as false. But the trial court need not adopt a party’s legal conclusions based on these facts. Moreover, in considering a motion for judgment on the pleadings, a trial court may consider exhibits attached to and incorporated into the pleadings, including exhibits attached to the complaint or the answer. Nevertheless, we are mindful that a motion for judgment on the pleadings should be granted only if the moving party is clearly entitled to judgment. (Citations and punctuation omitted.) BCM Constr. Group, LLC v. Williams, ___ Ga. App. ___ (840 SE2d 51) (Feb. 21, 2020). According to Villalobos’ complaint, he purchased a 2008 Ford F-150 from Atlanta Motorsports in January 2019. While at the dealership, Villalobos “made [a] 2 direct inquiry about the [truck’s] history,” the salesman represented that the pickup truck “was in good condition,” and when Villalobos went on a test drive, “it was represented to him as a good running truck with no problems.” After Villalobos purchased the truck, Atlanta Motorsports informed him that the truck had an oil leak, and Villalobos noticed a “major oil puddle” in his driveway on the day he took the truck home. Villalobos took the truck to a mechanic who informed him that the cost of the repairs exceeded the value of the truck. Villalobos attempted to return the truck to Atlanta Motorsports, which refused. Villalobos also revoked his acceptance by oral communication and by letter, but Atlanta Motorsports refused to honor his revocation. Villalobos brought the instant lawsuit, raising claims of fraud, rescission of the contract, revocation of his acceptance, and violations of the Georgia Fair Business Practices Act (OCGA § 10-1-391 et seq.) (“FBPA”) and the Georgia Used Car Dealer Act (OCGA § 43-47-1 et seq.). Atlanta Motorsports answered the complaint and attached to its answer a copy of the contract and bill of sale. The contract contained the following clause, which Villalobos separately signed: Page one and page two of this agreement, together with any installment sale agreement, arbitration agreement and any other documents signed 3  in connection with this transaction, shall constitute the entire agreement between the parties pertaining to the subject matter hereof and supersede all prior agreements, undertakings, negotiations and discussions, whether oral or written, of the parties. This agreement cannot be modified except by a written instrument executed by the parties. Buyer acknowledges that Buyer is not relying on any representation that is not contained in this Agreement. The contract also provided the following disclaimer in capital letters and boldface type: Unless a limited warranty is provided in writing to Buyer, the vehicle is sold “as is” with no warranty, the only warranties applying to this vehicle are those supplied by the manufacturer, if any. The seller hereby expressly disclaims all warranties, either express or implied, including any implied warranties of merchantability or fitness for a particular purpose. . . . The contract further provided that the truck was subject to a “buyer’s guide.” The buyer’s guide also noted in large typeface that the truck was being bought “as is - no dealer warranty.” The buyer’s guide contained the statement, “Ask the dealer if your mechanic can inspect the vehicle on or off the lot,” and it included a list of “some major defects that may occur in used vehicles,” which included oil leakage. 4  Atlanta Motorsports then moved for a judgment on the pleadings, arguing in part that the merger clause and the disclaimer in the contract prevented Villalobos from justifiably relying on any oral representations that did not become part of the written contract, and all of his claims therefore failed as a matter of law. The trial court granted Atlanta Motorsports’ motion and dismissed all of Villalobos’ claims. The trial court concluded that the terms of the contract, particularly the merger clause and the acknowledgment that Villalobos was purchasing the vehicle “as is,” precluded Villalobos from arguing that he justifiably relied on any alleged extracontractual misrepresentations. This appeal followed. 1. In three related enumerations of error, Villalobos argues that the trial court erred in determining that the terms of the contract could defeat his claims for fraud, rescission, and fraud under the FBPA. In particular, Villalobos argues at length that the trial court’s decision runs afoul of the Supreme Court of Georgia’s decision in City Dodge, Inc. v. Gardner, 232 Ga. 766 , 770 (208 SE2d 794) (1974), and its progeny. We conclude that the alleged extracontractual representations on which Villalobos seeks to rely are statements of opinion that are not actionable as fraud. Thus, regardless of whether the terms of the contract would have precluded any claims for fraud based on extracontractual misrepresentations, the trial court properly 5 granted judgment on the pleadings on Villalobos’ claims stemming from his allegations of fraud. “In general, a party alleging fraudulent inducement to enter a contract has two options: (1) affirm the contract and sue for damages from the fraud or breach; or (2) promptly rescind the contract and sue in tort for fraud.” (Citation and emphasis omitted.) Lehman v. Keller, 297 Ga. App. 371 , 373 (2) (677 SE2d 415) (2009). Here, Villalobos alleged in his complaint that he unsuccessfully attempted to return the truck, and his complaint clearly indicates that he has chosen to rescind the contract and sue for fraud. “Having elected to seek rescission and pursue a claim for fraud, [Villalobos is] required to prove that [Atlanta Motorsports] through misrepresentation, act, or artifice intentionally induced [him] to sign the Agreement and that [he] justifiably relied on the misrepresentation, act, or artifice, being reasonably diligent in the use of the facilities at [his] command.” (Citation and punctuation omitted.) Legacy Academy, Inc. v. Mamilove, LLC, 297 Ga. 15 , 17 (1) (771 SE2d 868) (2015). Whether it was reasonable for one to rely upon a certain misrepresentation is generally a question for a jury, although in some cases, the answer may appear so clearly that the question can be decided by a court as a matter of law. For instance, when one has entered a 6  contract with a binding and comprehensive merger clause, any reliance upon precontractual representations is, generally speaking, unreasonable as a matter of law. Likewise, when one is bound by a contract that includes terms that expressly, conspicuously, unambiguously, and squarely contradict precontractual representations, any reliance upon those precontractual representations may be deemed unreasonable as a matter of law. (Citations omitted.) Raysoni v. Payless Auto Deals, LLC, 296 Ga. 156 , 157 (766 SE2d 24) (2014). To understand Villalobos’ argument, we must provide a brief history of our case law in this area. In City Dodge, the main case relied upon by Villalobos, the Supreme Court of Georgia upheld a jury verdict concluding that a used car dealer had made a fraudulent oral misrepresentation that the car being sold “had never been wrecked.” 232 Ga. at 767 . The contract between the parties had a comprehensive merger clause and a clause that the buyer was purchasing the car “as is.” Id. In response to the seller’s argument that these clauses precluded the buyer’s fraudulent misrepresentation claim, the Supreme Court held that “the question of reliance on the alleged fraudulent misrepresentation in tort cases cannot be determined by the provisions of the contract sought to be rescinded but must be determined as a question of fact by the jury.” Id. at 770. The Supreme Court explained further: 7  It is inconsistent to apply a disclaimer provision of a contract in a tort action brought to determine whether the entire contract is invalid because of alleged prior fraud which induced the execution of the contract. If the contract is invalid because of the antecedent fraud, then the disclaimer provision therein is ineffectual since, in legal contemplation, there is no contract between the parties. Id. See also, e.g., Akins v. Couch, 271 Ga. 276 , 278 (3) (a) (518 SE2d 674) (1999) (relying on City Dodge to summarily reject an argument that the “various clauses in the sales agreement” precluded a claim for rescission based on fraudulent concealment); Crews v. Cisco Bros. Ford-Mercury, Inc., 201 Ga. App. 589 (411 SE2d 518) (1991) (concluding that City Dodge “laid to rest the contention that a merger clause in a contract being attacked for fraud precludes proof that a contract was fraudulently induced); Reilly v. Mosley, 165 Ga. App. 479 (301 SE2d 649) (1983) (relying on City Dodge to conclude that “as is” language in a contract did not preclude the appellant from showing justifiable reliance on a precontractual misrepresentation). In the Supreme Court case relied on by the trial court, Novare Group, Inc. v. Sarif, 290 Ga. 186 (718 SE2d 304) (2011), the Supreme Court concluded that a plaintiff was not entitled to rescind a contract because the written contract expressly 8 contradicted the alleged oral misrepresentations that formed the basis of their claim. Id. at 188-190 (2). The plaintiffs were all purchasers of condominiums and had alleged that the developer had falsely promised them “spectacular city views.” Id. at 189 (2). The Supreme Court concluded, however, that this alleged misrepresentation was directly contradicted by the provisions in the contract “that the views may change over time, oral representations of the sellers could not be relied upon, [the plaintiffs] did not in fact rely upon any oral representations or statements of [the sellers], and the entire agreement between the parties was set forth in the terms of the written contract.” Id. at 189 (2). The Supreme Court firmly concluded that a party who has the capacity and opportunity to read a written contract cannot afterwards set up fraud in the procurement of his signature to the instrument based on [extra-contractual] representations that differ from the terms of the contract. Statements that directly contradict the terms of the agreement or offer future promises simply cannot form the basis of a fraud claim for the purpose of cancelling or rescinding a contract. In fact, the only type of fraud that can relieve a party of his obligation to read a written contract and be bound by its terms is a fraud that prevents the party from reading the contract. (Citations omitted.) Id. at 188-189 (2). The Supreme Court further concluded that “[t]o be able to rescind a contract, the fraud must be of a nature that the [plaintiffs] 9 were deprived of an opportunity to read the agreements” and that the plaintiffs “[were] not entitled to back out of a written agreement whose terms expressly contradict the oral representations on which Purchasers claim to have relied.” Id. at 189 (2). In making its holding, the Supreme Court expressly distinguished its holding from City Dodge, noting that the issue of justifiable reliance may be a jury question in a fraud case where no contract exists or where the contract has become void, but that the Novare Group plaintiffs were not entitled to rescission as a remedy and so were bound by the terms of the contract. Id. at 190 (3). In Raysoni v. Payless Auto Deals, LLC, 296 Ga. 156 (766 SE2d 24) (2014), the Supreme Court confronted another claim to rescind a contract based on alleged fraudulent misrepresentations. In summarizing the law, the Supreme Court relied on Novare Group and other precedent to note that the issue of whether a plaintiff reasonably relied upon a misrepresentation “may appear so clearly that the question can be decided by a court as a matter of law.” Id. at 157. The Supreme Court noted that [f]or instance, when one has entered a contract with a binding and comprehensive merger clause, any reliance upon precontractual representations is, generally speaking, unreasonable as a matter of law. Likewise, when one is bound by a contract that includes terms that 10  expressly, conspicuously, unambiguously, and squarely contradict precontractual representations, any reliance upon those precontractual representations may be deemed unreasonable as a matter of law. (Citations omitted.) Id. at 157. The Supreme Court then analyzed the terms of the contract, which involved the purchase of a used car, and concluded that the plaintiff’s claim for fraud and rescission based on an inaccurate written Carfax report was not precluded by the terms of the contract. Id. at 160. The Supreme Court first concluded that the contract’s purported merger clause only covered oral representations, not written representations such as the written report, and so it was “not a case in which reliance on all precontractual representations was rendered unreasonable as a matter of law by a comprehensive merger clause.” Id. at 158. The Supreme Court further analyzed the contract’s disclaimer provisions and concluded that they were “not absolute and unequivocal enough to warrant judgment on the pleadings” because the provisions contained language that arguably limited their scope. Id. at 158-159. In Legacy Academy, Inc. v. Mamilove, LLC, 297 Ga. 15 (771 SE2d 868) (2015), the Supreme Court again concluded that a comprehensive disclaimer clause defeated a claim to rescind a contract based on fraudulent inducement as a matter of law. Id. at 17-19 (1). The plaintiff had argued that the defendant had falsely 11 represented the historical earnings of the franchise that the plaintiff purchased from the defendant, but the Supreme Court concluded that it was unreasonable for the plaintiff to rely on such representations because the contract included a disclaimer that the seller did not make any representations about the earnings capability of the franchise, and so their claim to rescind the contract failed as a matter of law. Id. at 16- 19 (1). The Supreme Court further concluded that the plaintiff’s fraud claim failed as a matter of law because any oral misrepresentations made before the contract could not constitute actionable fraud in light of the contract’s comprehensive merger clause. Id. at 19-20 (2). In making its ruling, the Supreme Court distinguished City Dodge on the grounds that there was evidence in that case “from which a jury could find that a rescinded contract is void because of antecedent fraud,” whereas it did not find any such evidence in Legacy Academy. Id. at 20 (2) n.7. Here, unlike Raysoni, the sales contract between the parties contained a comprehensive merger clause that explicitly noted that “[Villalobos] is not relying on any representation that is not contained in this Agreement.” Furthermore, the contract contained a unequivocal disclaimer clause noting that Villalobos was purchasing the truck “as is” with no warranty, and that Atlanta Motorsports “hereby expressly disclaims all warranties, either express or implied, including any implied warranties 12 of merchantability or fitness for a particular purpose.” This disclaimer in the written contract stands in contradiction to the alleged oral representations that the truck “was in good condition” and was “a good running truck with no problems.” See, e.g., Bill Spreen Toyota, Inc. v. Jenquin, 163 Ga. App. 855 , 856-857 (2) (294 SE2d 533) (1982) ( “The term ‘sold as is’ means sold in its present condition without any warranty as to soundness of condition or suitability for the purpose intended, and a fraud action cannot rest on a contradictory oral representation.”) (citation omitted).1 Furthermore, Villalobos has not alleged that he was prevented from reading the contract, through fraud or otherwise. 1 We further note that City Dodge involved a situation where a seller made an express warranty about the condition of the car, and “‘as is’ language . . . is ineffective to negate an express warranty.” City Dodge, Inc., supra , 232 Ga. at 767. “[A]n affirmation merely of the value of the goods or a statement purporting to be merely the seller’s opinion or commendation of the goods[,]” however, “does not create [an express] warranty.” OCGA § 11-2-313 (2). Putting aside the fact that thie contract in the instant case also contains a purported waiver of any express warranties, we note that the alleged misrepresentations on which Villalobos seeks to rely are near identical to other statements that we have found to constitute such statements of opinion or commendation of the goods. See Sheffield v. Darby, 244 Ga. App. 437, 439 (2)-(3) (535 SE2d 776) (2000) (statements that a horse “ha[d] no problems” and “would make a good show horse” were mere expressions of opinion and did not constitute express warranties); Reeb v. Daniels Lincoln-Mercury Co., Inc., 193 Ga. App. 817 , 819 (1) (b) (389 SE2d 367) (1989) (statement that a car was a “bug-free car” was mere sales puffery); Randall v. Smith, 136 Ga. App. 823 , 824-825 (222 SE2d 664) (1975) (statements that car “was in good condition” and “suitable for driving” were mere puffery). 13  This case therefore features the same circumstances as Novare Group and Legacy Academy, wherein the Supreme Court found that claims for fraud and rescission failed as a matter of law because there was no evidence that the plaintiff could have justifiably relied on the precontractual oral representations. Legacy Academy, Inc., supra , 297 Ga. at 16-20 (1)-(2); Novare Group, supra , 290 Ga. at 188- 190 (2)-(3). In each of these two cases, the Supreme Court expressly distinguished its holding from City Dodge and its progeny, Legacy Academy, Inc., supra , 297 Ga. at 20 (2) n.7; Novare Group, supra , 290 Ga. at 190 (3), and we are of course bound by the Supreme Court’s explanations of its own precedent. Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI. We therefore conclude that the trial court properly granted a judgment on the pleadings on Villalobos’ fraud and rescission claims. Because Villalobos’ FBPA and Used Car Dealer Act claims all stem from his allegations of fraud through these alleged misrepresentations, judgment on the pleadings was also properly entered in Atlanta Motorsports’ favor on these claims. See Novare Group, Inc., supra , 290 Ga. at 190 (3) (plaintiff could not justifiably rely on an oral representation that was contradicted by the plain terms of the contract and so judgment on the pleadings was proper in action for rescission, fraud, and fraud under FBPA). See also Edel v. Southtowne Motors of Newnan II, Inc., 338 Ga. App. 14 376, 380 (3) n.4 (789 SE2d 224) (2016) (plaintiff could not maintain a cause of action for fraud or misrepresentation under the Used Car Dealer Act).2 2. Villalobos finally argues that the trial court erred in dismissing his claim to revoke acceptance of the contract. We agree with Villalobos that the trial court erred in dismissing this claim because the terms of the contract do not preclude such a claim as a matter of law. Under Georgia’s commercial code, “[t]he buyer may revoke his acceptance of a . . . commercial unit whose nonconformity substantially impairs its value to him if he has accepted it [w]ithout discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.” OCGA § 11-2-608 (1) (b). “Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects.” OCGA § 11-2-608 (2). Here, Villalobos alleged that Atlanta Motorsports did not disclose the damage to the truck, the repairs to which he alleged would cost more than its value, until after 2 Because Villalobos did not allege a viable claim for misrepresentation, we do not address Villalobos’ argument and separate enumeration of error that the Used Car Dealer Act contains a private right of action to sue for misrepresentations or fraud. 15 he had signed the contract and purchased the vehicle. Villalobos also alleged that, had he known of the engine’s oil leak, he would not have purchased the vehicle. Villalobos further alleged that he committed at least some due diligence by “ma[king] [a] direct inquiry about the [truck’s] history” and taking the truck for a test drive before purchase, and he alleged that he notified Atlanta Motorsports of his revocation of acceptance. Furthermore, although the contract contained a provision that Villalobos was purchasing the truck “as is,” “[r]evocation is an available remedy even where the seller has attempted to limit its warranties by use of ‘as is’ language.” (Citation omitted.) Prudential Metal Supply Corp. v. Atlantic Freight Sales Co., 204 Ga. App. 439 , 440 (419 SE2d 520) (1992).3 At this early stage in the proceedings, therefore, we cannot conclude that Atlanta Motorsports is clearly entitled to judgment as a matter of law on Villalobos’ claim to revoke his acceptance of the truck. See Mauk v. Pioneer Ford Mercury, 308 Ga. App. 864 , 870 (2) (709 SE2d 353) (2011) 3 To be clear, an “as is” clause is not entirely irrelevant to a revocation of acceptance claim. The existence of such a clause is a relevant factor when determining the parameters of the sales agreement and, therefore, whether the seller had actually delivered goods that were “non-conforming.” See, e.g., Bicknell v. B&S Enterprises, 160 Ga. App. 307 , 309 (2) (287 SE2d 310) (1981) (analyzing whether the seller provided goods that conformed to the contract when the contract contained an “as is” clause). As the parties have not argued this point, however, we do not address it further. 16 (“Issues such as whether an effective revocation of acceptance was made, whether reasonable notice of revocation was given to the seller, and whether the value of the goods was substantially impaired are ordinarily matters for determination by the trior of fact[.]”) (citation omitted). Accordingly, we conclude that, while the trial court correctly granted judgment on the pleadings as to Villalobos’ fraud, rescission, FBPA, and Used Car Dealer Act claims, the trial court erred in granting a judgment on the pleadings on Villalobos’ revocation of acceptance claim. We therefore affirm the trial court’s judgment in part and reverse in part. Judgment affirmed in part and reversed in part. Mercier and Coomer, JJ., concur. 17

2020-06-05 07:03:23.268781+00

https://efast.gaappeals.us/download?filingId=a831536e-51a2-494b-a1f4-3bc3c6ad5bb8

SECOND DIVISION MILLER, P. J., MERCIER and COOMER, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. Please refer to the Supreme Court of Georgia Judicial Emergency Order of March 14, 2020 for further information at (https://www.gaappeals.us/rules). June 3, 2020 In the Court of Appeals of Georgia A20A0425. LOPEZ v. THE STATE. MILLER, Presiding Judge. A Chatham County jury found Jason Andrew Lopez guilty of two counts of family violence battery and two counts of family violence simple battery, and the trial court sentenced him to 48 months in prison. Lopez appeals from the trial court’s order denying his motion for new trial, arguing that (1) the trial court erred by admitting hearsay testimony at trial; (2) the trial court erred by admitting evidence of prior difficulties into evidence at trial; (3) the evidence was insufficient to sustain his convictions; and (4) the trial court erred by failing to merge his convictions. We conclude that the trial court did not err by admitting alleged hearsay evidence at trial, the trial court did not commit plain error by admitting evidence of prior difficulties, and that the evidence was sufficient to sustain Lopez’s convictions. We conclude, however, that the trial court erred by failing to merge Lopez’s convictions. We therefore affirm in part and vacate in part, and remand the case to the trial court for resentencing. Viewed in the light most favorable to the verdicts,1 on February 3, 2017, Patrick Wygal was at the courtyard of a hotel on an army base with two other individuals. According to Wygal, at around 4 a.m., Mallory, Lopez’s wife, was being chased by a “big naked dude” later identified as Lopez. Mallory ran up to Wygal and told him that Lopez had hit her and that her tooth had chipped. Wygal and another individual chased after Lopez, and he told them that he had gotten into a dispute with Mallory. Mallory spoke with a police officer who responded to the hotel and told him that she and Lopez had been fighting. She said that during the fight Lopez hit her legs, grabbed her by the arms, and pushed her down on to the bed. She also said that Lopez “held her down by the top of her chest to her throat and then began to hit her in the face” until she “tasted blood.” She said that Lopez then got off of her, at which time she ran to the hotel lobby area. Mallory did not testify at trial, but photographs of her injuries were entered into evidence at trial. 1 Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979). 2  In a four-count accusation, Lopez was charged with two counts of family violence battery (OCGA § 16-5-23.1 (f)), and two counts of family violence simple battery (OCGA § 16-2-23 (f)). The jury found Lopez guilty of all counts, and the trial court sentenced Lopez to 48 months in prison. Lopez filed a motion for new trial, which the trial court denied. This appeal followed. 1. First, Lopez argues that the trial court erred by admitting into evidence statements made by Mallory under the forfeiture by wrongdoing exception to the hearsay rule. We conclude that the trial court properly admitted Mallory’s statements into evidence. “We review a trial court’s ruling on an evidentiary question only for an abuse of discretion.” Almeda v. State, 348 Ga. App. 576 , 577 (1) (824 SE2d 72) (2019). The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. This clause applies to witnesses against the accused—in other words, those who bear testimony and, consistent with the framers’ original understanding, testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine. 3 (Citations and punctuation omitted.) Brittain v. State, 329 Ga. App. 689 , 693-694 (2) (a) (766 SE2d 106) (2014). Nevertheless, “notwithstanding a criminal defendant’s Sixth Amendment right to confront the witnesses against him, the common-law doctrine of forfeiture by wrongdoing permits the introduction of statements made by a witness who has been detained or kept away by the means or procurement of the defendant.” (Citation and punctuation omitted.) Id. at 694 (2) (a). Rephrased, “[o]ne who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.” (Citation omitted.) Hendrix v. State, 303 Ga. 525 , 528 (2) (813 SE2d 339) (2018). Hence, OCGA § 24-8-804 (b) (5) provides: “The following shall not be excluded by the hearsay rule if the declarant is unavailable as a witness: . . . A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” “To admit a statement against a defendant under the rule of forfeiture-by-wrongdoing, the government must show (1) that the defendant engaged or acquiesced in wrongdoing, (2) that the wrongdoing was intended to procure the declarant’s unavailability, and (3) that the wrongdoing did procure the unavailability.” (Citation and punctuation omitted.) Hendrix, supra , 303 Ga. at 528 (2). “If, as supported by a preponderance of the evidence, a trial court finds that a party has acted with the 4 purpose of making a witness unavailable to testify against him, a trial court does not abuse its discretion in allowing the unavailable witness’s statements to be admissible at trial against the party who caused the witness’s absence.” Id. Here, after Mallory failed to appear for trial, the State sought to admit into evidence several statements made by Mallory to police and other witnesses on the night of the incident, in addition to statements made by Mallory during jail calls with Lopez in which she recounted the details of the incident. In support of its motion, the State presented testimony from an investigator who testified that Mallory had been served with a subpoena to appear for trial. While serving Mallory with the subpoena, Mallory told the investigator that “her blood would be on her hands,” that she would not attend the trial, and that she would rather be jailed. The State also entered into evidence recordings of jail calls between Mallory and Lopez which were made after his arrest. In one call, Lopez repeatedly told Mallory that the State would not be able to proceed against him if she did not cooperate with the prosecution. In that same call, Lopez told Mallory that “just because they subpoena you doesn’t mean you have to show up[,]” and that she would not be arrested if she did not appear and testify at trial. Lopez also told Mallory that he hoped she came to court so that he could spit in her face. 5  We conclude that all three factors were proven by a preponderance of the evidence to admit Mallory’s statements into evidence under the forfeiture by wrongdoing rule. First, Lopez engaged in wrongdoing by pressuring Mallory with the notion that she did not have to comply with the subpoena to appear for trial and by repeatedly telling her that the State would not be able to proceed with the case without her. See Hendrix, supra , 303 Ga. at 529 (2) (holding that the defendant engaged in wrongdoing by instructing the victim not to cooperate with the State). Second, Lopez’s wrongdoing was intended to procure Mallory’s unavailability because he repeatedly told her that the State would not be able to proceed with the case against him if she did not cooperate. See Hendrix, supra , 303 Ga. at 529 (2) (holding that the defendant intended to procure the witness’s unavailability by commanding the witness not to cooperate with the State). Finally, Lopez’s wrongdoing did procure Mallory’s unavailability because, although under subpoena, Mallory did not appear for trial. See Hendrix, supra , 303 Ga. at 529 (2) (holding that the defendant procured the witness’s unavailability because the witness stopped cooperating with the State after being threatened by the defendant). Because a preponderance of the evidence showed that Lopez engaged in wrongdoing intended to procure Mallory’s unavailability, and that wrongdoing did actually cause her 6 unavailability, the trial court did not abuse its discretion by admitting Mallory’s statements under the forfeiture by wrongdoing rule. See id. (holding that the trial court did not err by admitting the witness’s statements under the forfeiture by wrongdoing rule where all three factors for admissibility were established by a preponderance of the evidence). 2. Second, Lopez argues that the trial court erred by admitting evidence of three prior difficulties involving Mallory into evidence at trial. We conclude that the evidence was properly admitted. As a preliminary matter, this enumeration of error was not preserved for appellate review. Although Lopez argues that this claim was preserved by a “continuing objection” at trial and by the filing of a motion for new trial, Lopez’s continuing objection was a hearsay objection made in reference to the trial court’s forfeiture by wrongdoing ruling. Lopez, however, did not raise an objection to the admissibility of the prior difficulties evidence at trial, and raising this argument in the motion for new trial did not preserve it for appellate review. Anthony v. State, 302 Ga. 546 , 549 (II) (807 SE2d 891) (2017) (“In order to preserve an objection for appellate review, the specific ground of the objection must be made at the time the challenged evidence is offered.”) (citation omitted). Therefore, we review this enumeration for 7 plain error only. See Perez v. State, 331 Ga. App. 164 , 166-167 (1) (770 SE2d 260) (2015) (applying plain error review to the defendant’s claim that the trial court erred by admitting prior bad acts into evidence at trial). To show plain error, first, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. (Citation and punctuation omitted.) Chitwood v. State, 352 Ga. App. 218 , 225-226 (3) (b) (834 SE2d 334) (2019). OCGA § 24-4-404 (b) provides: Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. 8  Here, Lopez challenges the admission of testimony regarding three prior difficulties involving Mallory. In the first incident, the State presented testimony from an officer that on March 19, 2016, he observed Mallory holding the right side of her face as she lay on the ground and that Mallory told him that Lopez had punched her in the face. In the second incident which occurred on November 9, 2015, a witness testified that he observed Lopez remove Mallory from a vehicle and put her on the ground and position himself on top of her. As to the third incident, which occurred on December 31, 2016, an officer testified that he responded to a bar in relation to a domestic disturbance and met with Mallory, and that Mallory told him that she and Lopez had gotten into an argument, and that as she sat in her car, Lopez got inside, put his knee on her thigh, and punched her in the face. The trial court admitted the evidence regarding the three prior difficulties and instructed the jury that it could consider the evidence as it related to “the state of feelings” between Mallory and Lopez and the reasonableness of any fears Mallory or Lopez might have had. Pretermitting whether evidence of the three prior difficulties was admissible to show the state of feelings between Mallory and Lopez, we conclude that Lopez cannot affirmatively show that the alleged errors probably affected the outcome at trial. The State presented evidence from multiple witnesses who testified that Mallory 9 said that Lopez hit her in the face and on her legs, and photographs showing Mallory’s injuries were entered into evidence for the jury’s consideration. Therefore, in light of the overwhelming evidence of Lopez’s guilt for the offenses, “it cannot be said that any error in the admission of this other evidence likely affected the outcome below.” Gates v. State, 298 Ga. 324 , 328 (3) (781 SE2d 772) (2016). 3. Lopez further argues that the evidence was insufficient to support his convictions. We disagree. On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict. (Citations omitted.) Harvey v. State, 344 Ga. App. 761 , 763 (811 SE2d 479) (2018). (a) Family Violence Battery A defendant commits the offense of battery when he intentionally causes substantial physical harm or visible bodily harm to another. . . . [T]he term “visible bodily harm” means bodily harm capable of being 10  perceived by a person other than the victim and may include, but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, or substantial bruises to body parts. And when a defendant commits the offense of battery against a spouse or other family member, then the offense constitutes family-violence battery. (Citations and punctuation omitted.) Futch v. State, 316 Ga. App. 376 , 379 (1) (a) (730 SE2d 14) (2012). Here, Count 1 of the accusation alleged that Lopez committed family violence battery in that he caused visible bodily harm to Mallory in the form of her chipped tooth. Count 2 alleged that Lopez committed family violence battery in that he caused visible bodily harm to Mallory due to her swollen eye. The State presented evidence from Wygal who testified that Mallory told him that Lopez had hit her and that her tooth had been chipped. An officer who responded to the hotel and met with Mallory also testified that Mallory told him that Lopez had hit her and that she suffered a chipped tooth when he hit her. The officer testified that he observed and photographed the chipped tooth. The officer also testified that he photographed Mallory’s injured eye. We conclude that this evidence was sufficient to sustain both of Lopez’s convictions for battery, family violence. (b) Family Violence Simple Battery 11  A person commits the offense of simple battery when he or she either: (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) Intentionally causes physical harm to another. When a person commits the offense of simple battery against a spouse, child or other family member, the offense constitutes family violence simple battery. (Citations omitted.) Onyekwe v. State, 332 Ga. App. 267 , 268 (1) (772 SE2d 64) (2015). Here, Count 3 of the accusation alleged that Lopez committed family violence simple battery by striking Mallory’s leg. Count 4 of the accusation alleged that Lopez committed family violence simple battery by grabbing Mallory by the throat. The State presented evidence from an officer who testified that Mallory told him that Lopez hit her legs and that he held her down with his hands around her neck. We conclude that this evidence was sufficient to sustain both of Lopez’s convictions, and therefore the trial court properly denied Lopez’s motion for new trial on this basis. 4. Lastly, Lopez argues that the trial court erred by failing to merge three of his convictions into one conviction for family violence battery. We agree. 12  “Whether offenses merge is a legal question, which we review de novo.” (Citation and punctuation omitted.) Fordham v. State, 352 Ga. App. 520 , 526 (3) (835 SE2d 360) (2019). The doctrine of merger precludes the imposition of multiple punishments when the same conduct establishes the commission of more than one crime.” (Citation omitted.) Fordham, supra , 352 Ga. App. at 526 (3). “For separate offenses charged in one indictment to carry separate punishments, they must rest on distinct criminal acts. If they were committed at the same time and place and were part of a continuous criminal act, and inspired by the same criminal intent, they are susceptible of only one punishment.” (Citations omitted.) Lucas v. State, 328 Ga. App. 741 , 742-743 (1) (760 SE2d 257) (2014). Here, Count 1 charged Lopez with family violence battery based upon his act of chipping his wife’s tooth, Count 2 charged Lopez with family violence battery based on his wife’s swollen eye, Count 3 charged Lopez with family violence simple battery based on Lopez’s act of striking his wife’s leg, and Count 4 charged Lopez with family violence simple battery based on Lopez’s act of grabbing his wife by the throat. In Mallory’s statements to police about the incident, she said that she and Lopez had been fighting, and that during the fight Lopez hit her legs, grabbed her by 13 the arms, and pushed her down on the bed. She also said that Lopez “held her down by the top of her chest to her throat” and that he then hit her in the face. Mallory also told another witness that she suffered a chipped tooth during the fight. Therefore, although Mallory suffered different injuries for each battery and simple battery offense, because the offenses were part of a continuous criminal act, committed at the same time and place and inspired by the same criminal intent, the trial court erred by failing to merge Lopez’s convictions for Count 2, Count 3, and Count 4 of the indictment into his conviction for Count 1. See Gomez v. State, 301 Ga. 445 , 455-456 (4) (b) (801 SE2d 847) (2017) (holding that defendant’s convictions for two counts of aggravated assault merged where, although one count was based on hemorrhages of the victims eyes and brain and the other was based on the victim’s skull fracture, there was no evidence of a “deliberate interval” but were instead a part of the same continuous act); Thompson v. State, 291 Ga. App. 355 , 360-361 (5) (662 SE2d 135) (2008) (holding that two counts of battery, one for hitting the victim in the mouth and one for hitting the victim in the eye, merged into one where there was no evidence of “two completed exchanges separated by a meaningful interval of time or with distinct intentions”). 14  In sum, although we affirm the jury’s verdicts, the trial court erred by failing to merge Lopez’s convictions and we therefore vacate the convictions of family violence battery (Count 2), family violence simple battery (Count 3), and family violence simple battery (Count 4), and we remand the case to the trial court for resentencing. Judgment affirmed in part and vacated in part and case remanded for resentencing. Mercier and Coomer, JJ., concur. 15

2020-01-17 22:01:35.606307+00

Milliicen

*706OWN ION. Milliicen: The issues involved in this proceeding were involved in the former proceeding. See 1 B. T. A. 736. The record, with two exceptions which we will hereafter discuss, is the same. The first issue is whether respondent erred in refusing to include the value of the patents set forth in the findings of fact in petitioner’s invested capital. With respect to this issue no new evidence was introduced. At the hearing of this proceeding, petitioner’s counsel withdrew the contention that the value of these patents should be treated as paid-in surplus, in view of our decision in Herald-Despatch Co., 4 B. T. A. 1096, and other cases. This leaves only the question whether the patents were paid in for capital stock. *707There is nothing in the record which indicates that the additional stock issued on January 22, 1917, was issued for the patents. Crim-mel, the patentee, received the same proportion of the stock that was issued to the other stockholders, each of whom received the new stock in proportion to his then holdings in the petitioner corporation. Besides, the consideration to be paid for the stock was specifically set forth in the contract of assignment. Crimmel was to receive such a sum for the use of the patents as the directors might “ determine to be fair and equitable therefor, based upon the volume of sales of each and all of said articles made, manufactured and sold by it, taking into consideration the cost of production, manufacturing and marketing same, and the profit to said company therefrom; and it is further understood and agreed that should the said Sneath Glass Company sell or assign the right to make or manufacture any or all of said articles to any other persons, firms or corporations, or transfer, sell or dispose of said Letters Patent, then and in that event the said Sneath Glass Company hereby agrees to pay to the said Alvie C. Crimmel, such reasonable sums, as may be determined upon by the Board of Directors of the Sneath Glass Company, based upon the amount received by it therefor.” This contract negatives the theory that the patents were paid in for the new stock. IVe see no reason why our former decision on this point should now be overruled and we again find that the value of the patents should not be included in petitioner’s invested capital. At the hearing of this proceeding, petitioner introduced testimony to the effect that it had never manufactured articles from tin or wood and we have found such to be a fact. The only other evidence introduced at said hearing was that of Crimmel with respect to the amounts paid him by petitioner under the contract of assignment. The material part of his testimony is as follows: Q. That agreement is elated the 22n<l of January, 1917; did the Board of Directors of the Company in 1917 grant you any additional compensation under this agreement? A. Yes. Q. In what amount? A. I do not remember whether it was five or ten thousand, five, I think. Q. Can you refresh your recollection from anything that you have with you that would enable you to say definitely? A. I may have papers there that would give that correct amount. Mr. Baker: Well, if your Honor please, I will let the record stand, because I believe it is immaterial whether it was five or ten, and I ask you, Mr. Crimmel, whether in 1918 the Board of Directors paid you anything under the agreement? A. Yes. By Mr. Baker: Q. Authorized the payment? A. Yes. Q. Do you recall about that; what the amount was? *708A. Five thousand dollars; I think it was over five — either five or ten; some years they paid ton and some five, mostly five. Mr. ISaker: That is all, Mr. Grimmel. We are requested to find that the patents bad a value when assigned of $200,000, for the reason that on the date of the assignment additional stock of that face value was issued. We have just held that the patents were not paid in for the stock and for this reason, we can not perceive any relation between the issuance of the stock and the assignment of the patents. We can not indulge in the double presumption that the par value of the stock establishes the value of the patents and that the value of the patents establishes the value of the stock. Although respondent has found in the matter of an estate tax that 96 shares of petitioner’s capital stock were worth par, he has made a different determination in this proceeding. While the former determination is evidential, it is not of sufficient weight to overcome the burden which rests on petitioner to overcome respondent’s findings in the deficiency letter upon which this proceeding is based and this it must accomplish by a preponderance of the evidence. Turning to the record we find an entire absence of evidence as to the value of petitioner’s tangibles. We find no testimony relative to the value of the patents when assigned or at any other time. We find no action by petitioner’s board of directors which places any value upon the patents. Petitioner points out that its net income for the year 1916, the year in which the patented articles were probably first manufactured and sold to any material extent, was nearly double what it was for the preceding year, and that approximately half of its sales for the latter year were of patented articles, but it is equally apparent that petitioner’s net income increased from $21,038.22 for 1911 to $57,993.35 for 1915. We are not informed as to what occurred in these four years which resulted in almost a triplication of petitioner’s income. Some of the same elements which produced the increase during the four preceding years may have materially contributed to the large net income received in 1916. Another vital element which is quite uncertain is what petitioner in fact paid or in the future will pay to Crimmel under the contract of assignment. Almost three years elapsed between the hearing of Docket No. 346 and the hearing of this proceeding, and petitioner was put on its guard by our former findings of fact and the conclusions we drew therefrom. Nevertheless, when Crimmel was asked what was paid him by petitioner for the use of his patent for the years 1917 and 1918, his guess varied from $5,000 to double that sum. There is no reason why this witness might not have testified to the exact amount which he received. Besides, petitioner is obli*709gated under tbe contract of assignment in the event of the sale by petitioner of the patents, to pay Crimmel “ such reasonable sums as may be determined by the Board of Directors of the Sneatlx Glass Company, based upon the amount received by it therefor.” The question we have before us is the value of these patents to petitioner, which of course is the value of the patents, less payments made for iheir use and payments to be made from the sale price. While we are of opinion that these patents had real value, yet under all the facts, as shown by the record in this and in the former proceeding, any attempt to fix the value of the patents would be a mere guess. We are unable to say that respondent erred in refusing to allow any deduction for the exhaustion of these patents. Under the order heretofore referred to, this proceeding will be restored to the Day Calendar for the purpose of determining whether petitioner is entitled to a computation of its tax under sections 327 and 328 of the Revenue Act of 1918.

2020-01-17 22:01:35.643393+00

Milliken

*715OPINION. Milliken: We will first dispose of the question of jurisdiction raised by respondent. The record discloses the following situation: On February 25, 1926, the day before the Revenue Act of 1926 was approved, the following letter was mailed from respondent’s office to petitioner: Miss Maeion Shainwald, 661 Madison Averme, Nero York, New York. Madam : In accordance with the provisions of Section 274(d) of the Revenue Act of 1924, there has been assessed against you an income and profits tax amounting to $1,296.81, for the taxable years 1920 and 1921, the details of which are set forth in the attached statements. Under the provisions of Section 279(a) of the Act you have the right to file with the Collector of Internal Revenue, within ten days after notice and demand for payment, a claim for abatement of this tax or any part thereof. The claim should have attached to it all evidence and data upon which you rely in support thereof, and should be accompanied by a bond not exceeding double the amount of the claim, with such sureties as the Collector deems necessary. When the claim is received by the Collector it will be transmitted to the Commissioner of Internal Revenue, Washington, D. C., who will notify you of the action taken. Respectfully, C. R. Nash, Assistant to the Commissioner. By (Signed) A. Lewis, Bead, of Division. On April 21, 1926, respondent mailed to petitioner the following letter: Miss Marion Shainwald, 661 Madison Avenue, New York, N. Y. Madam : In accordance with the provisions of Section 279(a) of the Revenue Act of 1926, there has been assessed against you an income and profits tax amounting to $1,298.81 for the taxable years 1920 and 1921, the details of which are set forth in the attached statement. In accordance with the provisions of Section 274(a) of the same Act, you are allowed sixty days (not counting Sunday as the sixtieth day) from tho date of the mailing of this letter within which to file a petition with the United States Board of Tax Appeals, contesting in whole or in part the correctness of this determination. Respectfully, D. H. Blair, Commissioner. Ob April 24, 1926, petitioner filed her petition with the Board. The petition contains the following allegations: (2) The notice of deficiency (copy of which is attached) dated February 25, 1926, was mailed to the petitioner and was received subsequent to February 25, 1926, and states a deficiency of $1,296.81. *716(3) The taxes in controversy are income taxes for the calendar years 1920 and. 1921 and are less than $10,000, to wit: For 1920- $259. 39 For 1921_ 1,037.42 Total- - 1,296.81 On October 28, 1926, respondent filed his answer, which went only to the merits. The proceeding was, by an order dated February 20, 1928, placed on the day calendar for hearing on April 19, 1928. On the latter date the case was called for hearing, whereupon respondent moved that the proceeding be dismissed on the ground that the appeal was prosecuted from the letter of February 25, 1926, which was not a final determination. Thereupon the following order was entered: This proceeding having come on for hearing before Division #11, on April 19, 1928, and counsel for the respondent having moved to dismiss for lack of jurisdiction, and counsel for the petitioner having requested leave to file an amended petition, without objection by counsel for the respondent, it is hereby Ordered that the proceeding be and the same is hereby Continued to the Day Calendar of May 21, 1928, for further hearing; and that the counsel for the petitioner be and is hereby granted leave to file an amended petition. In pursuance to said order, petitioner, on May 10, 1928, filed her amended petition which contains the following: (2) The notice of deficiency dated April 21, 1926 (copy of which is attached and marked Exhibit “A”) was received by the petitioner April 23, 1926 (3) The taxes in controversy are income taxes for the calendar years 1920-1921' and are to wit: For 1920_ $259.39 For 1921- 1,037.42 Total_ 1, 296. 81 It will be observed that the original petition was filed three days after the letter of April 21, 1926, was mailed. It was therefore filed within the time prescribed by section 274(a) of the Revenue Act of 1926. The deficiency therein appealed from is precisely the same in amount as that set forth in the letter of April 21, 1926, and also in the amended petition. The only error in the original petition is that it referred to letter of February 25, 1926. This error was cured by the allegations of the amended petition. The situation presented is squarely within the rule laid down in The Peruna Co., 11 B. T. A. 1180, and for the reasons there given the motion to dismiss must be overruled. We now proceed to the discussion of the merits. In their returns for the year 1920, the executors of the estate of Ralph L. Shainwald reported that they had paid petitioner $7,500 in the shape of divi-*717dencls received by them from corporations, and petitioner included these dividends in her return for the same year. The executors also took deduction for a loss arising from the sale of securities owned by the estate. Respondent has determined that to the amount returned by petitioner there should be added 27 per cent of all other dividends received by the estate and also 27 per cent of all other income of the estate less deductions other than capital losses. He has in fact disregarded the estate as a taxable entity in so far as income is concerned, and treated it as such an entity with respect to capital losses. Section 219 of the Revenue Act of 1918 in effect provides that the income of an estate in the process of settlement is taxable to the fiduciary, subject to the provision that such fiduciary may deduct the amount of any income “ properly paid or credited to any legatee, heir or other beneficiary.” It is not all income that is credited or paid to a legatee that may be deducted. Cf. Estate of W. S. Tyler, 9 B. T. A. 255, and Elizabeth Guthrie Heywood, et al., Executors, 11 B. T. A. 29. Such income to be deductible must be “ properly ” paid or credited. In the instant proceeding we have no bequest of income to the petitioner but only the devise and bequest of 27 per cent of what remained of the estate after the payment of all charges, including all death taxes, debts and legacies. There is no provision in the will of Ralph L. Shainwald which creates, in so far as the residuary beneficiaries are concerned, the right to any income which would separate such income from the income of the estate and make it táxable to the residuary beneficiaries, whether received by them or not and irrespective of the fact that such income might exceed the taxable income of the estate. Cf. Baltzell v. Mitchell, 3 Fed. (2d) 428. Petitioner has reported for the year 1920 all the income she received from the estate and the deficiency for that year arises solely from the inclusion by respondent in her gross income of amounts of income of the estate which were not bequeathed to her as income and which were not during the taxable year paid to her or credited to her under any order of court. In so doing respondent erred. See Charles J. Coulter, Jr., 6 B. T. A. 426. We next take up the deficiency for the year 1921. Petitioner is required by section 219 (d) of the Revenue Act of 1921, to include in her return for the year 1921 that part of the income of her father’s estate “which pursuant to the instrument or order governing the distribution is distributable ” to her. A distribution was made to her by the executors and we must presume, the contrary not appearing from the terms of the will or from the evidence of record, that the executors acted in the matter of distribution pursuant to the general powers conferred upon them and that the decree of the Surrogate’s Court of April 4, 1922, whereby the distribution of the executor *718of $76,622.54 was approved, was simply another step in affirming the acts of the executor. Such ratification was tantamount to previous authority. Under these circumstances, respondent’s action in including in petitioner’s gross income the amount of income paid or credited by the estate to her and which she concluded in her return was proper. 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 or 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; 278 U. S. 609. Lastly, we are of the opinion, for the reasons aoove given, that the respondent erred in including in petitioner’s gross income for the year 1921 the amount of $1,839.63, which was income of the estate and which was not credited or paid to petitioner during that year. Judgment will be entered for petitioner, with respect to the year 1920. Judgment will be entered under Rule 50, with respect to the year 1921.

2020-01-17 22:01:35.699698+00

Milliken

*721OPINION. Milliken : The only error raised in this proceeding is the refusal of the respondent to grant the application of petitioner to have its profits tax determined pursuant to the provisions of sections 327 and 328 of the Kevenue Acts of 1918 and 1921. The hearing in this pro*722ceeding was further limited to the issues defined in subdivisions (a) and (b) of Rule 62 of our rules of practice. Petitioner claims that it falls within section 327 and is entitled to have its tax computed under section 328 because of abnormal conditions affecting its capital and income.' It is urged that a substantial part of its income resulted from the Sears, Roebuck & Co. contract which it received from Rothschild for a nominal consideration and the full value of which, by reason of the manner of organization of petitioner, may not be included in the computation of invested capital. It is also urged that an abnormality results by reason of the use of paint-printing device which produced substantial income in the years and bears no relation to the invested capital structure of petitioner. The fact that assets may be used in business which may not be included in invested capital is not in and of itself sufficient basis to warrant recourse to sections 327 and 328 for the computation of the tax. See Morris & Co., 1 B. T. A. 704. The exclusion must be such as to create an abnormal condition affecting capital or income. The facts in each case must be weighed to ascertain if such an abnormality exists. An exclusion from invested capital or effect on income may in a given case be of no relative significance. We pass- ther$fore to endeavor to ascertain if an abnormality is presented in the case at bar justifying recourse to sections 327 and 328. It is obvious that the Sears, Roebuck & Co. contract and the paint-printing device were of great value to the petitioner, and during the years under consideration were the principal income-producing factors in the business. In 1919 they produced 61 per cent of the business; in 1920, 43 per cent; in 1921, 42 per cent. For the taxable year 19Ó0 they produced 70 per cent of the net profits, and for 1921 they produced 68 per cent. According to the computation of the respondent, the petitioner’s net income for 1920 was 75 per cent on its invested capital and in 1921 was 29 per cent. We have been presented with a great deal of evidence and cogent arguments tending to show that this contract was of the value of exceeding $200,000 and that the paint-printing device was of the value of $60,000 to $75,000. In the computation of profits taxes the contract was capitalized at $16,000 only, and no valuation was placed on the paint-printing device. The Sears, Roebuck & Co. contract was of much greater value than $16,000. It was petitioner’s most valuable asset and petitioner was organized iDrimarily ⅛0 perform this contract. The contract and paint-printing device produced more than two-thirds of the net profits for the taxable years, and in 1920 the receipts from the contract were 16 times the valuation *723placed upon it and the profits derived therefrom were 4.4 times said valuation; in 1921 the receipts were 12 times the valuation and profits S.4 times the valuation. We do not attempt to fix a definite value for the contract. We know that the contract and the paint-printing device were the main income-producing factors and that they wore both practically excluded from invested capital, and accordingly we conclude that an abnormality exists in both capital and income and that a hardship will result without the benefit of a comparative assessment. See Clarence Whitman & Sons, Inc., 11 B. T. A. 1192. Counsel for petitioner argued in his brief that petitioner had proved the value of the Sears, Roebuck Co. contract to be $200,000 and that, under section 234(a) (7) of the Act of 1918, it was entitled to an allowance of $66,666.66 for exhaustion each year. This question was not raised by petitioner in its petition or assigned as error, nor was the issue raised elsewhere in the pleadings or the evidence. Under the circumstances this question will be disregarded and our decision will be confined to that of the right to special assessment. Further proceedings will he had under Buie 62 (c) and (d).

2021-01-26 17:00:29.125664+00

http://media.ca11.uscourts.gov/opinions/unpub/files/202011524.pdf

USCA11 Case: 20-11524 Date Filed: 01/26/2021 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 20-11524 Non-Argument Calendar ________________________ D.C. Docket No. 2:18-cv-00779-TJC-NPM CMR CONSTRUCTION AND ROOFING, LLC, A/A/O The Orchards Condominium Association, Inc., Plaintiff-Appellee, versus EMPIRE INDEMNITY INSURANCE COMPANY, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (January 26, 2021) Before JORDAN, BRASHER, and ED CARNES, Circuit Judges. PER CURIAM:  USCA11 Case: 20-11524 Date Filed: 01/26/2021 Page: 2 of 8 This case involves a commercial property insurance dispute between Empire Indemnity Insurance Company, the insurer, and CMR Construction and Roofing, LLC, who has been assigned the rights of the insured, The Orchards Condominium Association, Inc. CMR sued Empire for breach of contract, and later moved to compel appraisal and stay litigation. The district court denied that motion, and after discovery it granted summary judgment to Empire. CMR appeals both of those orders. I. The Orchards, a condominium association in Naples, Florida, had an insurance policy issued by Empire when Hurricane Irma caused damage to 31 of its buildings. The policy lets the insured choose to receive one of two types of payment, or both. It can choose to receive the actual cash value, which is the replacement cost minus depreciation; or it can choose the replacement cost value, which is the replacement cost without the deduction for depreciation; or it can make a claim based on both the actual cash value and the replacement cost value if it notifies Empire of its intent to do so within 180 days of the property damage. The policy provides that Empire will not pay the replacement cost value, however: “(1) Until the lost or damaged property is actually repaired or replaced; and (2) Unless the repairs or replacements are made as soon as reasonably possible after the loss or damage.” 2  USCA11 Case: 20-11524 Date Filed: 01/26/2021 Page: 3 of 8 After Hurricane Irma, The Orchards reported to Empire that its buildings had been damaged. Empire inspected the property and, based on its estimate of the repair cost and factoring in the deductible and depreciation, it paid The Orchards $96,763.53. It is not clear from the record or the parties’ arguments why Empire issued this payment, whether it was meant to be for the actual cash value, or whether it was obligated to make this payment at all. After Empire issued that payment, The Orchards assigned its rights to CMR, which was the company that would make the repairs. Then, about five months after Empire’s payment to The Orchards, CMR sent Empire an estimate for the replacement cost value, which CMR said was $4,953,000.00. CMR had not completed any repairs. Empire did not pay the amount in CMR’s estimate but sent CMR its own estimate and invited questions for its expert’s consideration. CMR did not respond to that or demand an appraisal; instead, it filed this lawsuit.1 Its complaint alleges one breach of contract count, stating that Empire breached because it “underestimated the costs necessary to make all repairs” and it “failed to acknowledge coverage for all covered damages sustained.” Discovery revealed that CMR is requesting only replacement cost value and not actual cash value. In fact, CMR says it has not even calculated the actual cash value. 1 CMR filed the lawsuit in state court, and Empire removed it to federal court based on diversity jurisdiction. 3  USCA11 Case: 20-11524 Date Filed: 01/26/2021 Page: 4 of 8 After several months of litigation, CMR moved to stay litigation and compel appraisal, which is a process where the loss amount is appraised by third parties. The district court denied the motion, finding that CMR had waived its right to appraisal by acting inconsistently with that right. CMR had acted inconsistently, the court ruled, because it had, among other things, extensively litigated in state court, participated in case management without raising the appraisal issue, sought to benefit from discovery, and otherwise engaged in litigation for seven months before invoking appraisal. After discovery, the district court granted Empire’s motion for summary judgment. It found that Empire had not breached because CMR sought only replacement cost value yet had not completed any repairs, which under the plain language of the policy was a requirement to receive replacement cost value. The court also concluded CMR could not show that Empire breached a duty to pay actual cash value because CMR did not seek actual cash value and it could not “at this stage shift from claiming [replacement cost value] to claiming [actual cash value].” It summarized: “Empire did not breach the policy in failing to pay the [replacement cost value] because CMR did not undertake any repairs to which that policy provision applied. Nor did Empire breach the policy in failing to pay [actual cash value] because CMR never requested payment for [actual cash value].” 4  USCA11 Case: 20-11524 Date Filed: 01/26/2021 Page: 5 of 8 II. CMR contends that the district court erred in granting summary judgment to Empire. It argues that Empire breached the insurance policy and that the breach obligated Empire to pay the full estimated replacement cost value even though CMR has not completed any repairs. CMR’s argument about how, exactly, Empire breached is anything but clear. What is clear is that Empire did not breach and that the district court did not err. “We review a district court’s granting summary judgment de novo, consider all facts and reasonable inferences in favor of the nonmoving party, and apply the same legal standards used by the district court.” Galindo v. ARI Mut. Ins. Co., 203 F.3d 771 , 774 (11th Cir. 2000). We must interpret the terms of insurance policies “in accordance with the plain language of the policies as bargained for by the parties.” Prudential Prop. & Cas. Ins. Co. v. Swindal, 622 So. 2d 467 , 470 (Fla. 1993). When “a policy provision is clear and unambiguous, it should be enforced according to its terms” and we “may not rewrite” it. Taurus Holdings, Inc. v. U.S. Fidelity & Guar. Co., 913 So. 2d 528 , 532 (Fla. 2005) (quotation marks omitted). The insurance policy provides that a claim for replacement cost value will not be paid “[u]ntil the lost or damaged property is actually repaired or replaced” and “[u]nless the repairs or replacement are made as soon as reasonably possible after the loss or damage.” That “until and unless” provision is plain and 5  USCA11 Case: 20-11524 Date Filed: 01/26/2021 Page: 6 of 8 unambiguous. It means that Empire was not obligated to pay CMR the replacement cost value until CMR had actually made the repairs and incurred the costs of doing so. See Ceballo v. Citizens Prop. Ins. Corp., 967 So. 2d 811 , 815 (Fla. 2007) (“[C]ourts have almost uniformly held that an insurance company’s liability for replacement cost does not arise until the repair or replacement has been completed.”) (quoting State Farm Fire & Cas. Co. v. Patrick, 647 So. 2d 983 (Fla. 3d DCA 1994)). Empire could not have breached the insurance policy based on the replacement cost value because the “until and unless” provision had not been satisfied. CMR’s interrogatory answers state that it has made only temporary repairs, not that it has completed the repairs to all of the damage caused by Hurricane Irma. Empire could not have breached by not paying CMR’s estimated replacement cost value because CMR had not made any repairs covered by the policy; and certainly not the millions of dollars’ worth that CMR’s estimate lists and that CMR seeks in this lawsuit. Nor could Empire have breached the insurance policy based on the actual cash value because CMR did not and does not seek actual cash value. In response to an interrogatory asking it to specify whether it is claiming that it is owed money based on actual cash value or replacement cost value, CMR answered: “[CMR] is claiming Replacement Cost Value . . . [CMR] is not claiming Actual Cash Value 6  USCA11 Case: 20-11524 Date Filed: 01/26/2021 Page: 7 of 8 for the property and has not calculated that.” As the district court correctly found: “CMR never requested payment for [actual cash value].” (Emphasis added.) Despite all of that, CMR identifies as the source of Empire’s breach Empire’s $96,763.53 payment, which CMR says was based on an insufficient estimate of repair costs. As we’ve noted, the record does not show exactly what that payment was for. But even assuming CMR is right that the payment of that amount was based on an insufficient estimate of repair costs, it does not invalidate the “until and unless” provision. CMR insists that it is seeking the replacement cost value, which requires completion of the repairs before Empire must pay under the policy. There is no reason to think that if CMR had actually repaired the damaged property, as the policy requires, Empire would have denied coverage for the cost of the completed repairs. We cannot rewrite the plain terms of the insurance policy. See Taurus Holdings, 913 So. 2d at 532 . The district court did not err in granting summary judgment to Empire. III. CMR also contends that the district court erred in denying its motion to compel appraisal and stay litigation. We review de novo the waiver of the right to appraisal when the facts are undisputed. See Fla. Ins. Guar. v. Rodriguez, 153 So. 3d 301, 303 (Fla. 5th DCA 2014). Appraisal is a form of alternative dispute 7  USCA11 Case: 20-11524 Date Filed: 01/26/2021 Page: 8 of 8 resolution that sets a disputed loss amount. See State Farm Fla. Ins. Co. v. Crispin, 290 So. 3d 150 , 151 (Fla. 5th DCA 2020). A party may be held to have waived its right to appraisal if it has “actively participate[d] in a lawsuit or engage[d] in conduct inconsistent with the right.” Rodriguez, 153 So. 3d at 303. As the district court correctly pointed out, CMR did act inconsistently with the right to appraisal, and thereby waived it. CMR waited several months before filing this lawsuit and did not invoke the right to appraisal during that time, even though it had an estimate of repair costs that was different from the estimate Empire had. And after CMR filed this lawsuit, which included a demand for a jury trial, it waited several more months to assert a right to appraisal. Before invoking appraisal, CMR engaged in discovery in state court by serving Empire with interrogatories and a request for production. And in the district court it participated in case management and scheduling without raising the issue of appraisal. The “Case Management Report” that counsel for CMR signed has a section labeled “Other Alternative Dispute Resolution” and leaves a blank in which to list whether “[t]he parties intend to pursue the following other methods of alternative dispute resolution.” That blank was filled in: “None at this time.” The district court did not err in denying CMR’s motion to compel appraisal and stay litigation. AFFIRMED. 8

2020-12-01 13:01:47.386393+00

http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/1%20CA-CR%2019-0218%20-%20Conchola.pdf

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE STATE OF ARIZONA, Appellee, v. DUANE KEITH CONCHOLA, Appellant. No. 1 CA-CR 19-0218 FILED 12-1-2020 Appeal from the Superior Court in Maricopa County No. CR2018-129534-001 The Honorable Ronda R. Fisk, Judge AFFIRMED COUNSEL Arizona Attorney General’s Office, Phoenix By Alice Jones Counsel for Appellee Maricopa County Public Defender’s Office, Phoenix By Aaron J. Moskowitz Counsel for Appellant  STATE v. CONCHOLA Decision of the Court MEMORANDUM DECISION Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Jennifer B. Campbell and Chief Judge Peter B. Swann joined. W I N T H R O P, Judge: ¶1 Duane Keith Conchola appeals his conviction and sentence for misconduct involving weapons. For the following reasons, we affirm. FACTS1 AND PROCEDURAL HISTORY ¶2 Police executed a search warrant at a home where Conchola lived with others. Based on a prior felony conviction, Conchola was prohibited from possessing firearms. Officers found several guns during the search, one of which, a Ruger nine-millimeter handgun, was on the kitchen table. Police subsequently interviewed Conchola, and he admitted to handling the Ruger a day or two before the search. Conchola characterized the Ruger as a “house gun.” ¶3 The State charged Conchola and two other residents of the home with misconduct involving weapons. The three defendants were tried together. The jury found Conchola guilty and specifically determined he possessed the Ruger. Conchola then moved for a new trial. The trial court denied the motion. ¶4 At sentencing, the court found Conchola had two prior felony convictions and imposed a presumptive ten-year prison term. Conchola timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1). 1 We view the facts in the light most favorable to upholding the verdicts and resolve all reasonable inferences against the defendant. State v. Harm, 236 Ariz. 402 , 404, ¶ 2 n.2 (App. 2015) (citing State v. Valencia, 186 Ariz. 493 , 495 (App. 1996)). 2  STATE v. CONCHOLA Decision of the Court ANALYSIS I. Sufficiency of Evidence ¶5 “A person commits misconduct involving weapons by knowingly . . . [p]ossessing a deadly weapon or prohibited weapon if such person is a prohibited possessor.” A.R.S. § 13-3102(A)(4). Conchola argues no evidence shows he knowingly possessed the Ruger. We disagree. ¶6 We review de novo a claim of insufficient evidence. State v. West, 226 Ariz. 559 , 562, ¶ 15 (2011). Sufficient evidence may be direct or circumstantial and “is such proof that reasonable persons could accept as adequate . . . to support a conclusion of defendant’s guilt beyond a reasonable doubt.” State v. Borquez, 232 Ariz. 484 , 487, ¶¶ 9, 11 (App. 2013) (internal quotations omitted). “To set aside a jury verdict for insufficient evidence it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury.” State v. Arredondo, 155 Ariz. 314 , 316 (1987). In evaluating the sufficiency of the evidence, we test the evidence “against the statutorily required elements of the offense,” State v. Pena, 209 Ariz. 503 , 505, ¶ 8 (App. 2005), and “do not reweigh the evidence to decide if [we] would reach the same conclusions as the trier of fact.” Borquez, 232 Ariz. at 487, ¶ 9 (alteration in original) (internal quotations omitted). ¶7 “Possess” means “knowingly to have physical possession or otherwise to exercise dominion or control over property.” A.R.S. § 13- 105(34). The term thus encompasses constructive possession; a person may exercise dominion and control over an item without having physical possession of it. State v. Petrak, 198 Ariz. 260 , 264, ¶ 11 (App. 2000). Further, constructive possession does not require exclusive possession. State v. Chabolla-Hinojosa, 192 Ariz. 360 , 365, ¶ 18 (App. 1998). ¶8 The evidence sufficiently established that Conchola constructively possessed the Ruger. Conchola referred to the Ruger as a “house gun,” which the case agent described as “a gun that’s in the house and available for people to use should they need it, say if someone shows up shooting at their house or just whatever you might need a gun for.” The evidence showed Conchola lived at the house where the gun was found. Importantly, Conchola was in fact present when the search was conducted, and the Ruger was found in plain view on the kitchen table. Finally, Conchola admitted to handling the Ruger a day or two before the search. 3  STATE v. CONCHOLA Decision of the Court ¶9 Based on the foregoing, the jury could reasonably conclude Conchola knowingly exercised dominion and control over the Ruger on the day of the search. Sufficient evidence supports Conchola’s conviction. II. Conchola’s Mid-Trial Encounter with the Case Agent ¶10 During a weekend recess after the first day of trial, the case agent was on patrol when he pulled over a vehicle, suspecting the driver was impaired. Conchola was a passenger in that vehicle. ¶11 When the parties reconvened for the trial’s second day, Conchola’s counsel informed the court of the encounter, describing it as follows: And the case agent, according to my client, did make contact with him and did talk to him about this case, had discussions with him about his characterization of the evidence in this matter, saying something to the effect that he and his other codefendants are lucky that there is a prosecutor who made errors or what have you and that the evidence—something to that effect. . . . I think it’s improper. I think the case agent should have known that my client was represented by counsel, so I do think they have a Sixth Amendment problem[.] . . . I don’t believe that the case agent wrote a supplement in reference to his contact with my client. . . . So I think at some point we need to have a discussion about what the Court thinks is an appropriate remedy about what has occurred. ¶12 The court expressed its “serious[] concern[]” and confirmed with the prosecutor that the case agent indeed had not supplemented his case report with information regarding the encounter, nor was there a police report from the traffic stop itself. The court then asked the parties whether Conchola made any statements during the encounter that would implicate the Fifth or Sixth Amendment. According to Conchola, he made no statements at all. ¶13 The prosecutor then provided further details regarding the encounter: [The case agent] pulled over a car which the defendant was a passenger in. He didn’t realize that the defendant was a passenger at the time he pulled the car over. The car was 4  STATE v. CONCHOLA Decision of the Court pulled over because it was very late at night, very dark, and the car was observed making some traffic violations that would be consistent with a possible impaired driver. The case agent upon seeing the defendant was in an awkward situation because the defendant did have an open bottle of alcohol, which is a crime. The case agent had a couple different options at that point. He could have cited or arrested the defendant for [an] open container, but he did not want to cause complications to the trial. So what he ended up doing is he told the defendant that since he is in trial right now and he just received a favorable ruling on, you know, an evidentiary issue that he shouldn’t mess things up further by continuing to commit crimes, even minor crimes like possessing an open container of alcohol. And that was his warning to the defendant. ¶14 Before trial proceeded, the prosecutor informed the court that he would not seek to use any evidence from the encounter at trial. Nonetheless, codefendant’s counsel stated he intended to cross-examine the case agent regarding the encounter, arguing that “it goes to motive, and it goes to his credibility.” The court disagreed and precluded such questioning. ¶15 Conchola raises two issues pertaining to his out-of-court encounter with the case agent. First, he argues the court fundamentally erred by not sua sponte conducting an evidentiary hearing to assess “whether he is a victim of police harassment or was ‘singled out’ for witness intimidation.” Conchola asserts “under-oath testimony” was required for the court to properly determine “what happened” during the encounter. Conchola also argues the trial court erred by proscribing cross-examination of the case agent about the encounter. ¶16 Conchola’s arguments fail. The circumstances of the traffic stop simply were not relevant to determine whether Conchola unlawfully possessed a weapon at his home eight months prior. Moreover, Conchola presented no offer of proof as to any relevant evidence that an evidentiary hearing would have revealed. ¶17 Under these circumstances, the trial court did not err, fundamentally or otherwise, by failing sua sponte to require an evidentiary hearing, or by precluding cross-examination of the case agent regarding his 5  STATE v. CONCHOLA Decision of the Court out-of-court encounter with Conchola.2 See Ariz. R. Evid. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”); Ariz. R. Evid. 402 (“Irrelevant evidence is not admissible.”); see also State v. Escalante, 245 Ariz. 135 , 142, ¶ 21 (2018) (noting the first step in fundamental error review is determining whether error occurred). ¶18 Furthermore, in light of the prosecutor’s avowal that he would not raise the out-of-court encounter during the State’s case-in-chief, the superior could reasonably conclude that cross-examining the case agent on that subject would be improper. Conchola does not argue the evidence at trial ultimately rendered the court’s preliminary conclusion incorrect. Instead, he argues cross-examining the case agent would have revealed the case agent’s “personal bias or hostility” towards Conchola. But, in light of the trial evidence, including Conchola’s admissions during the post-search interview, whatever bias or hostility the case agent harbored against Conchola—whether at the time of the search or during the encounter—was irrelevant in determining Conchola’s guilt. III. Motion for a New Trial ¶19 Finally, Conchola contends the trial court reversibly erred by reviewing his motion for a new trial under an improper standard of Arizona Rule of Criminal Procedure (“Rule”) 20. See West, 226 Ariz. at 562, ¶ 16 (“[T]he relevant question [when considering a Rule 20 motion] is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”); see also State v. Lee, 189 Ariz. 608 , 615 (1997) (explaining that where evidence points to differing results, it is for the jury to decide and the trial court may not grant a judgment of acquittal). According to Conchola, the court should have weighed the evidence and made credibility determinations to consider whether the guilty verdict reflected “substantial justice.” See State v. Fischer, 242 Ariz. 44 , 50, ¶ 21 (2017) (“The judge may weigh the evidence, make 2 Conchola contends we review the court’s order denying cross- examination of the case agent for an abuse of discretion. In response, the State argues fundamental error is the appropriate standard of review because Conchola failed to join in his codefendant’s stated intent to conduct the cross-examination. Because we find no error, we need not resolve this procedural issue. 6  STATE v. CONCHOLA Decision of the Court credibility determinations, and set aside the verdict and grant a [post- verdict Rule 24 motion for a] new trial even if there is sufficient evidence in the record to support the verdict.”). ¶20 We reject Conchola’s argument. Pursuant to Rule 24.1(c), the superior court may grant a new trial on the following grounds: (1) the verdict is contrary to law or the weight of the evidence; (2) the State is guilty of misconduct; (3) one or more jurors committed misconduct[;] ... (4) the court erred in deciding a matter of law . . . ; or (5) for any other reason, not due to the defendant’s own fault, the defendant did not receive a fair and impartial trial or phase of trial. ¶21 The standard that Conchola claims the trial court failed to properly apply in addressing his new trial motion is the standard a court uses when determining, under Rule 24.1(c)(1), whether “the verdict is contrary to law or the weight of the evidence.” See West, 226 Ariz. at 563, ¶ 18 (“[I]n ruling on a Rule 20 motion, unlike a motion for a new trial under [Rule] 24.1(c)(1), a trial court may not re-weigh the facts or disregard inferences that might reasonably be drawn from the evidence.”). But Conchola did not assert Rule 24.1(c)(1) as the basis for his motion; rather, he argued both that the State was guilty of misconduct based on its opening statement, and the court erred by admitting “other act” evidence under Arizona Rule of Evidence 404. Thus, Conchola’s new trial motion was based on Rule 24.1(c)(2) and (4), and the court was not required to review the motion under the standard applicable to Rule 24.1(c)(1) claims. Conchola cites no authority to the contrary, nor does he argue that the court’s denial of the new trial motion was otherwise reversible error. The trial court did not abuse its discretion. See State v. Waller, 235 Ariz. 479 , 486, ¶ 22 (App. 2014) (a trial court’s denial of a motion for a new trial is reviewed for an abuse of discretion). 7  STATE v. CONCHOLA Decision of the Court CONCLUSION ¶22 We affirm Conchola’s conviction and sentence. AMY M. WOOD • Clerk of the Court FILED: AA 8

2021-01-26 18:00:36.223819+00

http://www.opn.ca6.uscourts.gov/opinions.pdf/21a0049n-06.pdf

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0049n.06 No. 19-2389 UNITED STATES COURTS OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA ) FILED ) Jan 26, 2021 Plaintiff-Appellee, ) DEBORAH S. HUNT, Clerk ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT DEVIN DEVON-MOORE LEWIS ) COURT FOR THE WESTERN ) DISTRICT OF MICHIGAN Defendant-Appellant. ) ) BEFORE: CLAY, GIBBONS, and NALBANDIAN, Circuit Judges JULIA SMITH GIBBONS, Circuit Judge. Devin Devon-Moore Lewis was walking down an alley in Kalamazoo, Michigan with an acquaintance when he was stopped by law enforcement officer Nick Oliver. At first, Oliver focused most of his attention on Lewis’s acquaintance, whom Oliver knew from prior interactions. During the course of the encounter, however, Oliver became suspicious that Lewis was involved in criminal activity. Oliver requested backup and gradually shifted his attention to Lewis. Once a second officer arrived on the scene, Oliver and the other officer physically restrained and searched Lewis. They found that Lewis was carrying a firearm, drugs, and drug paraphernalia. Lewis was indicted and charged with possession of a firearm as a felon, possession of methamphetamine with intent to distribute, and possession of a firearm in furtherance of drug trafficking. He filed a motion to suppress, arguing that Oliver violated his Fourth Amendment right against unreasonable search and seizure. After an evidentiary hearing, the district court No. 19-2389, United States v. Lewis denied the motion. Lewis pled guilty and was sentenced to 135 months of imprisonment. On appeal, he challenges the district court’s denial of his motion to suppress. Because Oliver had reasonable suspicion to conduct a Terry stop and search Lewis for weapons by the time that Lewis was seized, we affirm. I. Around 10:50 p.m. on October 9, 2018, Kalamazoo law enforcement officer Nick Oliver was patrolling a high-crime area in a marked police vehicle. Oliver spotted two people walking in a public alley that Oliver knew was commonly used to evade police detection and trespass on neighboring properties. He decided to investigate and drove into the alley, approaching the individuals. Oliver parked his patrol car several feet away from the two individuals and got out. According to Oliver, his vehicle was parked parallel to the alleyway, and there was enough room on either side for a person to walk past. Oliver did not activate the light bar on top of his vehicle, but he did direct his headlights and shone a flashlight towards the individuals. He was in full police uniform and was carrying his service pistol, but he did not draw his weapon. As he got out of his vehicle, Oliver recognized one of the individuals in the alley as Amber French. Oliver, from prior experiences with French, knew that she had used drugs in the past and had stolen items from houses and trashcans. The other individual was the defendant, Lewis. Oliver’s interaction with Lewis and French was captured by his body camera, and, thus, the following sequence of events is largely undisputed. Oliver greeted French and Lewis and asked if he could talk to them for a minute. He approached French, who was standing several feet in front of Lewis. Shortly after, Oliver asked Lewis to take his hand out of his pocket, explaining that he did not know whether Lewis was armed. As Lewis removed his hand from his pocket, he patted his waistband, which Oliver took as an indication that Lewis might be carrying a weapon. -2- No. 19-2389, United States v. Lewis After asking Lewis to keep his hands visible, Oliver turned his attention back to French and began talking to her about an altercation he had had with her boyfriend the week before. He offered to run a warrant check on French and told her that he would let her go as long as she did not have any outstanding felony warrants. French agreed. While Oliver was talking to French, he noticed Lewis brush something small and white from behind his left ear and onto the ground. Oliver testified that based on his experience as a police officer, he believed that Lewis was discarding some sort of contraband. Oliver noticed that Lewis was standing at an angle with his right hip away from Oliver, a position Oliver described as “bladed.” He testified that this was “a common stance for people to use who are carrying guns.” DE 59, Hr’g Tr., Page ID 255:23–24. Oliver also observed that Lewis had an “abnormally large bulge” around his right hip, which Oliver believed could be a gun. Id. at Page ID 256:3–4. Based on these observations, when Oliver used his radio to ask a dispatcher whether French had any outstanding warrants, he also requested backup because he believed that Lewis was armed. Oliver then asked French who her friend was and gestured towards Lewis. French said Lewis was her friend, and then Oliver asked Lewis directly what his name was. Lewis responded that his name was “Duke,” and Oliver followed up, asking him “Duke what?” trying to get Lewis to give him a full name. Oliver testified that he thought Lewis was being evasive by giving him a nickname instead of his full name. Oliver asked if Lewis was the same person whom he had given a ride to earlier, but French told him that he had given a ride to her other friend. After talking to French for a few more minutes, Oliver turned to Lewis again and asked “what’s your name bud? What’s your real name?” CA6 R. 27, Body Cam Video, at 20:46:09. Instead of answering, Lewis asked Oliver why this matter concerned him since Oliver was primarily talking to French. Oliver explained that he liked to know the people in his patrol area -3- No. 19-2389, United States v. Lewis and said that he had let French and others go before when they only had petty warrants outstanding. He again asked Lewis for his real name. At this point Oliver also moved closer to Lewis, so he was standing in between French and Lewis instead of just in front of French. After some back and forth, Lewis told Oliver that his name was Devin Moore. Oliver asked Lewis if he had any outstanding warrants, and Lewis said that he did not. Oliver told Lewis that he would search the name Devin Moore to confirm that there were no outstanding warrants but that he was not concerned with “minor” warrants like traffic violations or failure to pay child support. About thirty seconds after Oliver asked the radio dispatcher to check whether Devin Moore had outstanding warrants, headlights appeared down the other side of the alley approaching the area where Oliver, Lewis, and French were standing. As the headlights approached, Oliver moved closer to Lewis and asked whether he was carrying any weapons or tools, telling him that he noticed Lewis had something bulky in his waistband. Lewis replied that he was not armed, but Oliver still told Lewis not to reach towards his waistband. Oliver then asked Lewis if he could search him, but Lewis refused. Around the same time, it became clear that the approaching headlights were from a second marked police vehicle. The second vehicle parked, blocking what had been an unobstructed path down the other end of the alley. Officer Greg Day, the backup that Oliver had requested, exited the vehicle in full uniform and stood next to his patrol car, several feet from where Lewis and Oliver were. At this point, Oliver’s attention was focused on Lewis. Oliver asked Lewis again whether he was armed, and Lewis put his hands up. Oliver asked Lewis to take his backpack off, and Lewis complied. Oliver asked Lewis if he was afraid of something and told him to relax. Oliver then grabbed Lewis’s right wrist as Officer Day grabbed his left wrist. Lewis tried to break free of the officers’ holds and, according to Oliver, attempted to punch him. The officers pinned Lewis to a -4- No. 19-2389, United States v. Lewis fence and waited for more officers to arrive before handcuffing and searching him. The officers found a loaded handgun in Lewis’s waistband at his right hip and drugs and drug paraphernalia in his backpack. Officers also found a partially smoked marijuana joint on the ground where Lewis was standing when he brushed something from behind his left ear. On November 7, 2018, Lewis was indicted on charges of possession of a firearm as a felon, possession of methamphetamine with intent to distribute, and possession of a firearm in furtherance of drug trafficking.1 On December 12, 2018, Lewis filed a motion to suppress the evidence seized by Oliver, arguing that he was unlawfully detained and searched in violation of his Fourth Amendment rights. After an evidentiary hearing, the district court denied Lewis’s motion. The district court determined that Lewis was seized when “Officer Day arrived, at least partially blocking the other end of the alley, Officer Oliver moved several steps closer to Lewis and used a more commanding tone.” DE 35, Order Den. Mot. to Suppress, Page ID 88. The district court reasoned, however, that by then Oliver had established reasonable suspicion that Lewis had been or was engaged in criminal activity. Specifically, the district court found that Oliver had reasonable suspicion because Lewis was in a high-crime area in an alley where people regularly trespassed, was with a known drug user and petty thief, and had exhibited behaviors characteristic of someone discarding contraband and of someone carrying a weapon. The district court also found that Oliver had reasonable suspicion to suspect that Lewis was armed and dangerous, which justified frisking Lewis during the stop. After the district court denied the motion to suppress, Lewis pled guilty to counts one and four of the superseding indictment, but he reserved the right to appeal the district court’s denial of the motion to suppress. Lewis was sentenced to a total of 135 months of imprisonment. 1 On January 8, 2019, the grand jury returned a superseding indictment, which added additional charges related to another incident that occurred before Lewis’s encounter with Oliver. -5- No. 19-2389, United States v. Lewis On November 27, 2019, he filed a timely appeal, arguing that Oliver’s detention and search of his person violated his Fourth Amendment rights. II. When reviewing a denial of a motion to suppress, the district court’s factual determinations are reviewed for clear error and its legal conclusions are reviewed de novo. United States v. Pacheco, 841 F.3d 384 , 389 (6th Cir. 2016) (citing United States v. Herndon, 501 F.3d 683 , 687 (6th Cir. 2007)). “A factual finding is clearly erroneous when, although there may be evidence to support it, the reviewing court, utilizing the entire evidence, ‘is left with the definite and firm conviction that a mistake has been committed.’” United States v. Ellis, 497 F.3d 606 , 611 (6th Cir. 2007) (quoting United States v. Navarro–Camacho, 186 F.3d 701 , 705 (6th Cir.1999)). “Whether a seizure is reasonable is a question of law, which we review de novo.” United States v. Winters, 782 F.3d 289 , 295 (6th Cir. 2015). Whether reasonable suspicion existed is a mixed question of law and fact, which we also review de novo. United States v. Townsend, 305 F.3d 537 , 541 (6th Cir. 2002). At all times, the evidence must be viewed “in the light most likely to support the district court’s decision.” United States v. Dillard, 438 F.3d 675 , 680 (6th Cir. 2006) (quoting United States v. Braggs, 23 F.3d 1047 , 1049 (6th Cir. 1994)). III. A. The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures.” U.S. CONST. amend. IV. Interactions between the public and police officers fall into three categories: “consensual encounters in which contact is initiated by a police officer . . . ; a temporary involuntary detention or Terry stop which must be predicated upon reasonable suspicion; and arrests which must be based on probable -6- No. 19-2389, United States v. Lewis cause.” United States v. Campbell, 486 F.3d 949 , 953–54 (6th Cir. 2007) (quoting United States v. Bueno, 21 F.3d 120 , 123 (6th Cir. 1994)). For purposes of the Fourth Amendment, an encounter between an officer and a citizen becomes a seizure when the officer restrains the person’s freedom of movement “by means of physical force or a show of authority.” United States v. Mendenhall, 446 U.S. 544 , 553 (1980). Put another way, a person is seized when a reasonable person would not believe he or she was free to leave or disregard the officer’s requests. United States v. Richardson, 385 F.3d 625 , 629 (6th Cir. 2004). In addition, the person must actually surrender to the officer’s show of authority. United States v. Johnson, 620 F.3d 685 , 690 (6th Cir. 2010). The question of when a seizure occurs is relevant because “[o]nce a consensual encounter escalates to the point where the individual is ‘seized,’ the police officer must have a reasonable suspicion of criminal activity to justify a Terry stop, or probable cause to justify an arrest, in order for the seizure to comply with the Fourth Amendment.” Campbell, 486 F.3d at 954 . Whether a person is seized is based on the totality of the circumstances from the perspective of a reasonable person in the defendant’s position. Mendenhall, 446 U.S. at 554 . Examples of circumstances that indicate a seizure include “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” Id.; see also United States v. McCall, 433 F. App’x 432, 437 (6th Cir. 2011) (“Our court has further elaborated factors for determining whether a person would feel free to leave: ‘(1) [T]he purpose of the questioning; (2) whether the place of the questioning was hostile or coercive; (3) the length of the questioning; and (4) other indicia of custody such as . . . whether the suspect possessed unrestrained freedom of movement during questioning; and whether the suspect initiated contact with the police.’” (quoting United States v. Swanson, 341 F.3d 524 , 529 (6th Cir. -7- No. 19-2389, United States v. Lewis 2003))). Simple police questioning is insufficient to constitute a seizure. Florida v. Bostick, 501 U.S. 429 , 434 (1991); see also United States v. Drayton, 536 U.S. 194 , 201 (2002) (“[L]aw enforcement officers . . . may pose questions, ask for identification, and request consent to search luggage—provided they do not induce cooperation by coercive means.”). In certain circumstances, however, “words alone may be enough to make a reasonable person feel that he would not be free to leave.” Richardson, 385 F.3d at 629−30 (finding an individual was seized after an officer asked him to “just hang out right here for me, okay?”); see also United States v. Smith, 594 F.3d 530 , 534, 539 (6th Cir. 2010) (seizure occurred when officers asked the defendant to stop and told him that he would be free to leave as soon as they determined he was not involved in unlawful activity). Here, Lewis contends that he was seized the moment Oliver parked his car in the alley, began talking to French and Lewis, and pointed his flashlight at them. The district court, however, found that seizure did not occur until the second officer arrived on the scene and Oliver moved closer to Lewis and used a more commanding tone. On appeal, the government asks this court to affirm the district court’s finding of when seizure occurred. Lewis’s argument that he was seized the moment Oliver approached him and French in the alley lacks merit. The district court found that Oliver spoke “in a very causal and non-threatening tone, directing the vast majority of his questions and conversation toward French rather than Lewis.” DE 35, Order Den. Mot. to Suppress, Page ID 88. Lewis’s exit was not blocked; he could have walked away down the other end of the alley or walked around Oliver’s patrol vehicle. Oliver also did not draw his weapon. See Campbell, 486 F.3d at 956 (defendant was not seized when officer “had neither drawn his weapon nor activated his emergency lights or siren”). The few direct statements Oliver made to Lewis—asking him to take his hand out of his pocket and asking -8- No. 19-2389, United States v. Lewis for his name—did not amount to a seizure. See Drayton, 536 U.S. at 201 (asking for identification in a noncoercive manner is not a seizure). Lewis argues that Oliver asserted his authority when he asked Lewis to take his hands out of his pockets, but, considering the totality of the circumstances, Oliver’s request did not amount to a seizure. See United States v. Preston, 579 F. App’x 495, 499 (6th Cir. 2014) (no seizure occurred when an officer “asked in a conversational tone to see [the defendant’s] hands . . . without drawing his gun, and without accusing [defendant] of wrongdoing, or physically touching him”). Thus, because Lewis had multiple available exit paths, Oliver spoke in a casual tone, and the majority of the focus was on French rather than Lewis, the district court correctly held that Lewis was not seized when Oliver first approached French and Lewis.2 The interaction changed, however, about five minutes into the encounter when Oliver shifted his attention to Lewis. Oliver moved so that he was standing in between Lewis and French, asked Lewis again what his real name was, and followed up with him until Lewis told him his full name. Oliver then told Lewis that he would check to see if the name he provided, Devin Moore, was associated with any outstanding warrants. Unlike his previous conversation with French, Oliver did not ask Lewis whether he would like him to see if he had any outstanding warrants. Instead, Oliver told Lewis directly that “[he]’ll run that [warrant check] real quick.” CA6 R. 27, Body Cam Video, at 20:47:24. Oliver also said that he was not concerned if Lewis had warrants for minor offenses, stating that “it’s not about warrant arrests tonight.” CA6 R. 27, Body Cam Video, at 20:47:34. Saying he was not concerned with petty warrants, however, implies that Oliver would arrest Lewis if Oliver learned of any felony warrants. Even though Oliver’s tone remained casual and he did not draw his weapon, a reasonable person in Lewis’s position would not feel free to leave after Oliver said he was checking to see if Lewis had outstanding warrants in these 2 For these same reasons, I respectfully disagree with the dissent’s argument that Lewis was seized when Oliver initially stopped Lewis and French after he drove his vehicle into the alley. -9- No. 19-2389, United States v. Lewis circumstances. See Campbell, 486 F.3d at 956 (the defendant was seized when the officer told the defendant that he “could be on his way just as soon as [the officer] I’d him.”); see also Smith, 594 F.3d at 539 ; Richardson, 385 F.3d at 629 . Accordingly, Lewis was seized at this moment.3 B. Having identified the point when the seizure occurred, our next inquiry is whether Oliver had reasonable suspicion to detain Lewis at that moment.4 In Terry v. Ohio, the Supreme Court held that when a law enforcement officer has a reasonable, articulable suspicion that a person may be involved in criminal activity, he may, consistent with the Fourth Amendment, conduct a brief investigatory stop of the person. 392 U.S. 1 , 30–31 (1968). Reasonable suspicion consists of more than a mere hunch, but “is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence.” Illinois v. Wardlow, 528 U.S. 119 , 123 (2000). Whether reasonable suspicion exists “must be based on specific, objective facts” and “the totality of the circumstances in place at the time of seizure.” United States v. Johnson, 620 F.3d 685 , 692 (6th Cir. 2010) (first quoting Brown v. Texas, 443 U.S. 47 , 51 (1979)). In addition, the officer may rely on his “own experience and specialized training to make inferences from and deductions about the cumulative information available.” United States v. Arvizu, 534 U.S. 266 , 273 (2002). Here, Oliver had reasonable suspicion to justify a Terry stop because by the time that Lewis was seized he had multiple indicators that Lewis may have been involved in criminal activity. 3 While the concurrence asserts that Lewis was not seized until the second officer arrived, I continue to maintain that, given the totality of the circumstances, a reasonable person in Lewis’s position would have felt unable to leave when Oliver focused his attention on Lewis and told him he was going to check whether he had outstanding warrants. 4 The choice between whether Lewis was seized when Oliver told him he was searching to see if he had outstanding warrants or when the second officer arrived does not affect the reasonable suspicion analysis. At both times, Oliver had already observed all the factors that supported a finding of reasonable suspicion. -10- No. 19-2389, United States v. Lewis The first indicator was that Lewis was in a high-crime area walking in an alley that people regularly used to avoid police detection and to trespass on neighboring properties. While this fact on its own could not create reasonable suspicion, it is a relevant factor in the analysis. See Wardlow, 528 U.S. at 124 (holding that whether the defendant was in a high crime area was a relevant factor when determining reasonable suspicion). Second, Oliver saw Lewis brush a small object from behind his left ear and onto the ground. Based on his experience as a law enforcement officer, Oliver knew that this was a common method people used “to discard drug evidence upon the sight of police.” DE 59, Hr’g Tr., Page ID 257:19– 20; see United States v. Pearce, 531 F.3d 374 , 382 (6th Cir. 2008) (finding that actions that could be interpreted as an effort to conceal contraband contribute to reasonable suspicion); United States v. Paulette, 457 F.3d 601 , 606 (6th Cir. 2006) (finding reasonable suspicion “based upon [defendant’s] hand movements consistent with drug-dealing activity, efforts to evade the police upon noticing them, and presence in a high crime area”). Third, Lewis was evasive when Oliver asked for his name. See Johnson, 620 F.3d at 694 (“The Supreme Court has held that ‘nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.’” (quoting Wardlow, 528 U.S. at 124 )); see also Smith, 594 F.3d at 541 (finding that the defendant’s evasive and vague answers to the officer’s questions supported a finding of reasonable suspicion). Fourth, there were several factors that indicated to Oliver that Lewis may have been armed. When Oliver first approached French and Lewis, he noticed that Lewis patted his right hip. Oliver testified that he was “trained in the police academy” that people often subconsciously pat the area where they are carrying a gun. DE 59, Hr’g Tr., Page ID 253:8–11. Oliver also noticed a bulge in Lewis’s waistband at his right hip, the same area he had patted earlier. See Mimms, 434 U.S. at -11- No. 19-2389, United States v. Lewis 111–12 (“[T]he bulge in the jacket permitted the officer to conclude that [the defendant] was armed and thus posed a serious and present danger to the safety of the officer.”); United States v. Stennis, 457 F. App’x 494, 499–500 (6th Cir. 2012) (finding that a bulge suspected to be a weapon was a relevant factor as to reasonable suspicion). Finally, Oliver observed that Lewis was standing in a “bladed position” with his right hip angled away from him; Oliver testified that he recognized this as a “common stance for people to use who are carrying guns.” DE 59, Hr’g Tr., Page ID 255:20– 24.5 United States v. Chandler, 437 F. App’x 420, 424, 426 (6th Cir. 2011) (approving of officer’s pat-down search of the defendant after the officer observed the defendant assumed a bladed position). Based on the totality of the circumstances, Oliver had a reasonable suspicion that Lewis was engaged in criminal activity at the time of the seizure. Arvizu, 534 U.S. at 274−75 (holding that the court must consider whether all the facts, taken together, warranted further investigation.). Lewis was in a high-crime area and his behavior during the encounter with Oliver was evasive and consistent with a person carrying a weapon and concealing drug evidence.6 Thus, Oliver had reasonable suspicion to conduct a Terry stop by the time that Lewis was seized and did not infringe on Lewis’s Fourth Amendment rights. 5 Lewis appears to dispute the district court’s finding that there was a bulge in his waistband and that he was standing in a defensive position. Based on Oliver’s body cam video, however, the district court’s factual findings that there was a bulge at Lewis’s right hip or that he was standing in a bladed position were not clearly erroneous. Accordingly, this court accepts the district court’s factual findings as true. United States v. Pacheco, 841 F.3d 384 , 389 (6th Cir. 2016). 6 The parties dispute whether Lewis’s association with French—who Oliver knew often trespassed and stole items from people’s properties—is also a contributing factor to the court’s reasonable suspicion analysis. Because reasonable suspicion must be particularized to the suspect in question, Lewis’s association with French would add little, if anything, to the reasonable suspicion calculus. See United States v. Beauchamp, 659 F.3d 560 , 570 (6th Cir. 2011) (“Simply talking to someone else, without more, is innocent activity and does not indicate that a crime is happening or is about to take place.”); United States v. Patterson, 340 F.3d 368 , 372 (6th Cir. 2003) (“[T]he officers only could factor in [the defendant’s] actions and the circumstances surrounding him alone in order to constitute reasonable suspicion.”). However, we do not resolve this dispute between the parties. Even without considering Lewis’s association with French, Oliver had sufficient information to establish reasonable suspicion. -12- No. 19-2389, United States v. Lewis C. Finally, Lewis disputes whether Oliver had reasonable suspicion to search his person for weapons. When an officer makes a Terry stop, he may also perform a precautionary search— known as a frisk or pat down—whenever he has reasonable suspicion that the person searched may be armed and dangerous. Knowles v. Iowa, 525 U.S. 113 , 118 (1998). Again, reasonable suspicion in this situation is “based on the totality of the circumstances.” Joshua v. DeWitt, 341 F.3d 430 , 443 (6th Cir. 2003). Ultimately, the test is whether “a reasonably prudent [person] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger.” United States v. Noble, 762 F.3d 509 , 521–22 (6th Cir. 2014) (alteration in original) (quoting Terry, 392 U.S. at 27 ). If the answer is yes, then the officer may conduct a brief pat- down search to determine whether the defendant is armed. Pacheco, 841 F.3d at 390. Here, for the reasons detailed above, Oliver had reasonable suspicion that Lewis was carrying a firearm. Lewis patted his right hip when Oliver first approached, there was a bulge in his waistband at his right hip, and Lewis stood with his right hip angled away from Oliver. Based on his training and experience, Oliver recognized all three of these behaviors as indicators that Lewis was armed. See also Mimms, 434 U.S. at 111–12; Stennis, 457 F. App’x at 499–500; Chandler, 437 F. App’x at 424, 426. Thus, Oliver was entitled to conduct a brief pat-down search of Lewis to check for weapons. IV. The district court’s denial of Lewis’s motion to suppress is affirmed. -13- No. 19-2389, United States v. Lewis NALBANDIAN, Circuit Judge, concurring and concurring in the judgment. I agree that there is no Fourth Amendment violation here. But I write separately on the issue of when the officers seized Lewis. The majority holds that police seized Lewis when Officer Oliver told him he’d run a warrant check on his name. I believe the seizure came shortly after, when a second officer arrived and blocked Lewis’s exit up the alley. As the majority points out, whether a seizure has occurred depends on the totality of the circumstances. United States v. Mendenhall, 446 U.S. 544 , 554 (1980). The question is whether “a reasonable person would have believed that he was not free to leave.” Id. And facts that might suggest a seizure include “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” Id. Others include the purpose of the questioning; whether the place was hostile or coercive; how long it went on; the suspect’s freedom of movement; and other indicia of custody. United States v. Swanson, 341 F.3d 524 , 529 (6th Cir. 2003). So let’s look at the circumstances as they existed when Oliver ran the warrant check. On one hand, Oliver was alone and hadn’t displayed his weapon. Those facts weigh against a seizure. On the other, Oliver stepped closer to Lewis and asked for his real name. But “a seizure does not occur simply because a police officer approaches an individual and asks a few questions.” Florida v. Bostick, 501 U.S. 429 , 434 (1991); see also United States v. Foster, 376 F.3d 577 , 584 (6th Cir. 2004) (“When Higgins first addressed Foster, Higgins asked Foster his name, what he was doing there, and whether he had any identification on him. This is permitted under Fourth Amendment precedent.”). In fact, law enforcement can approach a person in public and ask him questions without a reasonable suspicion of criminal activity. United States v. Smith, 594 F.3d -14- No. 19-2389, United States v. Lewis 530, 538 (6th Cir. 2010). And police “can position themselves immediately beside and in front of a suspect and even reach across a suspect, provided they leave a way out.” Id.; see also United States v. Drayton, 536 U.S. 194 , 197–99 (2002). True, Oliver had taken a few steps toward Lewis, but he hadn’t touched him. And the purpose of Oliver’s interaction with French and Lewis was for Oliver “to make contact with” and get to know people in his neighborhood. In fact, Oliver reiterated to French and Lewis that he wasn’t interested in making warrant arrests that night. And right after telling Lewis he’d run the warrant check, Oliver told him at least he’d “have the peace of mind of knowing” whether he had any outstanding warrants for his arrest. This, together with telling Lewis and French that he wasn’t “about warrants” that night, suggests that Oliver wasn’t running the check to detain Lewis but to give him information. Swanson, 341 F.3d at 529 (noting that the purpose of the questioning is relevant); United States v. Rose, 889 F.2d 1490 , 1493 (6th Cir.1989) (“The subjective intent of the officers is relevant to an assessment of the fourth amendment implications of police conduct only to the extent that that intent has been conveyed to the person confronted.”). This all points to a consensual encounter. Oliver was alone, hadn’t drawn his weapon, hadn’t touched Lewis, and maintained the same tone of voice as he had earlier in the encounter. See Mendenhall, 446 U.S. at 554 . His stated purpose in asking Lewis for his name and running the check was informational, the interaction took place on a public street, and Lewis’s path back up the alley was unimpeded. See Swanson, 341 F.3d at 529 . In other words, none of the traditional indicia points us to a seizure here. So it’s hard to see how adding the warrant check—unaccompanied by any restraints on Lewis’s freedom of movement or exchange of a physical ID—transforms this prototypical consensual encounter into a Terry stop. I’ve found no support for this. The warrant check is of course one factor among -15- No. 19-2389, United States v. Lewis others to consider. But I don’t think a warrant check changes a consensual encounter into a seizure when no other circumstance supports such a metamorphosis. See United States v. Weaver, 282 F.3d 302 , 310 (4th Cir. 2002) (refusing “to adopt a brightline rule that when an officer retains an individual’s identification beyond its intended purpose, in this case checking for outstanding warrants, the individual whose identification is retained is effectively seized for purposes of the Fourth Amendment”). And cases holding that a seizure occurred during a warrant check generally involve two facts beyond what we have here: the officers explicitly told the defendants not to leave, and they retained a physical copy of the defendants’ identification. See, e.g., United States v. Tyler, 512 F.3d 405 , 410–11 (7th Cir. 2008) (officers took defendant’s identification and retained it while they ran a warrant check and told defendant he could not leave until the warrant check finished); United States v. Lopez, 443 F.3d 1280 , 1282 (10th Cir. 2006) (warrant check was a seizure where officer held onto license and told defendant to wait).1 The majority cites United States v. Campbell, 486 F.3d 949 (6th Cir. 2007) to support its holding on the timing of the seizure. But I’m unconvinced. In Campbell, a police officer conditioned the defendant’s ability to leave on the officer’s checking the defendant’s identification. Id. at 957 (“Only later in their exchange—after Campbell said that he had no ID—did Officer Salser ‘seize’ Campbell by creating the condition that ‘he could be on his way just as soon as [I] 1 It’s also worth noting that state courts considering the question have held that a warrant check, by itself, isn’t a seizure under the Fourth Amendment. See State v. McInnis, 169 N.H. 565 , 568 (2017) (no seizure when single uniformed police officer approached defendant, explained he was investigating a crime, asked if defendant was involved, then ran a warrant check in his presence); State v. Martin, 79 So.3d 951 , 959–60 (La. 2011); Wilson v. State, 199 P.3d 517 , 520 (Wyo. 2009) (“Appellant was engaged in a consensual conversation with the officer when the warrant check was conducted.”); State v. Page, 73 So.3d 351 , 352 (Fla. Dist. Ct. App. 2011) (holding that “the mere act of running appellee’s name for an active warrants check does not require reasonable suspicion”); State v. Adams, 158 P.3d 1134 , 1137 (Utah Ct. App. 2007) (officer’s act of taking defendant’s identification for a minute to conduct a warrant check was consensual); State v. Johnson, 517 N.E.2d 262 , 264 (Ohio Ct. App. 1986) (defendant wasn’t seized when two uniformed officers approached him, asked his name, and ran a warrant check). -16- No. 19-2389, United States v. Lewis ID’d him.’”). Here, though, Oliver told Lewis he would “run that [warrant] check real quick” so that Lewis would have “peace of mind.” Nothing in that conditions Lewis’s ability to leave on the completion of the check. The majority also cites United States v. Smith, 594 F.3d 530 (6th Cir. 2010). In Smith we held that police seized the defendant not when several officers surrounded him and began asking him questions in a closed space, but when an officer directed him to “stop” when he tried to leave. Id. at 539 (“Once Officer Putnick asked Smith to stop, a reasonable person would not have felt free to leave….”). That kind of explicit command is absent here. And police issued a similar command in United States v. Richardson, 385 F.3d 625 (6th Cir. 2004). That case, like Smith, involved police telling the defendant to stay put. Id. at 630 (“‘Okay, just hang out right here for me, okay?’”). And the officer issued the command to the driver of a vehicle—but a passenger raised the Fourth Amendment claim. Id. at 627–28. Of course, “[w]hen the driver is not free to leave, neither are his passengers; indeed, the passengers are at the mercy of any police officer who is withholding the return of their driver.” Id. at 630 . Here, though, unlike that passenger, Lewis’s freedom of movement didn’t depend on anyone, let alone a person whom a police officer had just commanded to stay put. In short, I don’t believe Oliver seized Lewis when he said he’d run a warrant check. Instead, officers seized Lewis when a second officer arrived and blocked Lewis’s main path away from the encounter. But because I agree that officers had a reasonable suspicion to seize Lewis when Oliver ran the warrant check and also when the second officer arrived, I agree with the majority’s decision to affirm. -17- No. 19-2389, United States v. Lewis CLAY, Circuit Judge, dissenting. Under some circumstances, law enforcement officers are permitted to stop and interrogate persons who are acting suspiciously, even when there is no probable cause for an arrest, without violating the Fourth Amendment. Terry v. Ohio, 392 U.S. 1 , 22 (1968). What law enforcement officers are not permitted to do is to stop and interrogate individuals where there is no probable cause, or even reasonable suspicion, to believe that criminal activity may be underway—in the hope or expectation that reasonable suspicion may arise or develop in the course of the encounter to justify seizure of those individuals pursuant to the Fourth Amendment. That appears to be what happened in the instant case. The police action, under the circumstances of this case, should be repudiated, and the motion to suppress should have been granted. On the night in which Defendant Devin Lewis was seized, Officer Nick Oliver was patrolling a neighborhood at night and was not investigating any suspected criminal activity when he observed Lewis and his acquaintance, Amber French, walking down a public alley. While the alley had purportedly been commonly used by individuals to evade police detection or trespass into adjacent residential areas, no trespass had been reported that night, and the two individuals were neither committing nor suspected of committing any trespass or other criminal activity. At that point, Oliver decided to park his police cruiser close to French and Lewis with the headlights flashing in their faces. Officer Oliver got out of the car, shined a flashlight in their faces, and asked French and Lewis if he could speak to them, all while dressed in full uniform and carrying a weapon. While he initially engaged French in a conversation, a few seconds into the encounter, Officer Oliver requested that Lewis—who was standing close behind French—take his hand out -18- No. 19-2389, United States v. Lewis of his pocket (presumably to ensure he did not have a weapon), a request with which Lewis immediately complied.1 The Fourth Amendment’s protection against unreasonable searches and seizures was meant to “prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” United States v. Martinez-Fuerte, 428 U.S. 543 , 554 (1976). By denying the motion to suppress in this case, the district court chipped away at this protection, allowing Officer Oliver to seize Lewis and engage in a Terry stop and frisk without any reasonable suspicion that Lewis was participating in any criminal activity. At the time Lewis was seized— when Oliver parked his police cruiser right in front of Lewis and French, began speaking to them, and specifically requested that Lewis take his hand out of his pocket—Oliver had no reason to be “suspicious” based on the fact that Lewis and French were walking together in a public alley at night, in what the officer described as a “high crime area.” Because these circumstances were not sufficient to give rise to reasonable suspicion to justify a stop and frisk, the district court’s denial of Lewis’ motion to suppress should be reversed and the case remanded for further proceedings. In Terry, the Supreme Court held that “the Fourth Amendment governs ‘seizures’ of the person which do not [result] in a trip to the station house and prosecution for crime—‘arrests’ in traditional terminology,” and that “whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” 392 U.S. at 16 ; see also United States v. Arvizu, 534 U.S. 266 , 273 (2002) (“[The Fourth Amendment’s] protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest.”). A person is seized 1 Officer Oliver did not see Lewis pat his waistband or discard something that appeared small and white from behind his left ear until after Officer Oliver told Lewis to remove his hand out of his pocket. Additionally, after this point in the interaction—while talking to French and offering to run a warrant check on her—is when he noted Lewis’s “bladed” stance and his “abnormally large bulge” near his right hip, prompting him to call for backup when he radioed to run the warrant check on French. (R. 59, Hr’g on Mot. to Suppress at PageID # 255:20–24, 256:3–4.) -19- No. 19-2389, United States v. Lewis during a police interaction when “by means of physical force or a show of authority, his freedom of movement is restrained” such that “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544 , 553–54 (1980). In considering when a person is “seized” by police for purposes of the Fourth Amendment, the Supreme Court has indicated that officers do not unreasonably seize individuals “by approaching [them] on the street or in other public places and putting questions to them if they are willing to listen,” allowing officers to “pose questions, ask for identification, and request consent to search luggage—provided they do not induce cooperation by coercive means.” United States v. Drayton, 536 U.S. 194 , 200–01 (2002). But in some circumstances “words alone may be enough to make a reasonable person feel that he would not be free to leave” regardless of whether the officer uses an “intimidating demeanor” or “coercive language.” United States v. Richardson, 385 F.3d 625 , 630 (6th Cir. 2004) (holding that passenger of a car was seized when the officer told the driver to “Okay, just hang out right here for me, okay?” and the passenger reasonably did not feel free to leave); see also United States v. Beauchamp, 659 F.3d 560 , 568 (6th Cir. 2011) (holding that the officer seized the defendant by “driving up to him after he had already walked away from another officer and . . . specifically instruct[ing] him to stop and to change the direction in which he was going”). Based on the totality of the circumstances, Lewis was seized when Officer Oliver drove his police cruiser into the public alley, stopped Lewis and French as they were walking through this alley at night, and asked Lewis to take his hand out of his pocket to ensure that Lewis did not have a weapon. A reasonable person would not have felt free to leave the interaction with the officer who had parked his police vehicle with the headlights flashing right in front of Lewis and -20- No. 19-2389, United States v. Lewis French, shined a flashlight in their faces, and, immediately after asking if he could speak to them for a minute, requested that Lewis take his hand out of his pocket. Even if the officer did not use a threatening tone, Oliver made a specific request of Lewis, with which a reasonable person would have felt compelled to comply. See Richardson, 385 F.3d at 630 . This request, coupled with the police car being parked in front of Lewis and Officer Oliver being in full uniform and carrying a weapon, resulted in a situation in which a reasonable person would not have felt free to leave the interaction. Cf. United States v. Preston, 579 F. App’x 495, 499 (6th Cir. 2014) (holding that the defendant had not been seized when, “unprompted by the officers, Preston voluntarily walked toward the police car through the well-lit parking lot of the liquor store” and the officer “rolled down his window and asked in a conversational tone to see Preston's hands and whether he possessed a weapon”). Further, in taking his hands out of his pockets, Lewis submitted to the officer’s show of authority. See United States v. Johnson, 620 F.3d 685 , 691 (6th Cir. 2010). (finding that the defendant submitted to a show of authority when “he ‘yield[ed]’ to the officers’ yelled commands to ‘stop’ and ‘stay right there where he was’”). Additionally, Lewis’ theoretical ability to walk away from the interaction with Officer Oliver was not determinative of whether a reasonable person would have felt free to leave. While the majority notes that Officer Oliver’s police cruiser did not completely block Lewis’ exit, a reasonable person would likely not have felt free to walk away from an armed officer and, in particular, one who had made specific requests and parked a police cruiser right in front of him. See United States v. Smith, 794 F.3d 681 , 686 (7th Cir. 2015) (“Common sense dictates that no reasonable person in an alley would feel free to walk ‘through’ two armed officers on bicycles.”). And, generally, the fact that Lewis “stopped walking to respond to [the officer’s] inquiry [] does -21- No. 19-2389, United States v. Lewis not, by itself, transform this encounter into a seizure.” O’Malley v. City of Flint, 652 F.3d 662 , 669 (6th Cir. 2011). But, in the present case, Lewis did not simply stop to respond to the officer’s question; rather, he stopped because he felt that he had to comply with the officer’s requests to speak to him and to take his hand out of his pocket, as would any reasonable person. Ultimately, Lewis was seized when Officer Oliver parked the police car in front of Lewis and French, asked to speak to them, and asked Lewis to remove his hand from his pocket. When Lewis was seized, Officer Oliver had no reasonable suspicion to justify stopping Lewis. Pursuant to Terry, officers can briefly stop individuals for whom they have reasonable suspicion that the person is participating in criminal activity based on “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” 392 U.S. at 21 . In United States v. Cortez, the Supreme Court provided further guidance on the reasonable suspicion standard, noting that “the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” 449 U.S. 411 , 417–18 (1981). Additionally, reasonable suspicion is determined “based on the totality of the circumstances in place at the time of seizure.” Johnson, 620 F.3d at 692 . While officers cannot rely on a mere hunch to justify a stop, they can “make inferences from the information available to them that ‘might well elude an untrained person.’” United States v. McCauley, 548 F.3d 440 , 444–45 (6th Cir. 2008) (quoting Arvizu, 534 U.S. at 273 ). And an officer may conduct a limited frisk of an individual properly stopped under Terry if the officer has reasonable suspicion that the individual is “armed and dangerous.” 392 U.S. at 27 . In terms of what characteristics or behavior can provide an officer with reasonable suspicion to conduct a Terry stop, we have found that an anonymous tip can provide reasonable suspicion “when the police know the tipster to be reliable or when the tip contains independently -22- No. 19-2389, United States v. Lewis verifiable details showing knowledge.” Northrop v. Trippett, 265 F.3d 372 , 381 (6th Cir. 2001); see also United States v. Patterson, 340 F.3d 368 , 371 (6th Cir. 2003) (finding that an anonymous tip that “merely described drug activity without any details as to the perpetrators” was not sufficiently reliable to create reasonable suspicion because it could not predict “future unlawful activities”). Additionally, although not sufficient on its own, “nervous, evasive behavior is a pertinent factor in determining reasonable suspicion,” and “[h]eadlong flight—wherever it occurs—is the consummate act of evasion.” Illinois v. Wardlow, 528 U.S. 119 , 124 (2000). But see Beauchamp, 659 F.3d at 570 (“[W]alking away from an officer does not create such a reasonable suspicion. . . . In those cases in which we have found that walking away from police does contribute to reasonable suspicion, specific facts have shown that the defendant’s behavior was otherwise suspicious.”). Similarly, furtive conduct such as “[b]ending or leaning tends to be more suspicious when accompanied by some other indication of an attempt to conceal contraband or to reach for a weapon, such as arm movements or the sound of an item being moved.” United States v. Caruthers, 458 F.3d 459 , 467 (6th Cir. 2006), abrogation on other grounds recognized by United States v. Betts, 806 F. App’x 426 (6th Cir. 2020). None of the aforementioned “suspicious” circumstances were present in the instant case, nor any other circumstances that would have provided Officer Oliver reasonable suspicion that Lewis was engaged in any criminal activity. At the time of the seizure, all Oliver knew was that there were two individuals walking down a public alley at night in what he described as a “high crime area.” Although the public alley in which Lewis and French were walking had been used in the past to trespass on adjacent private property, no trespasses had been reported that night, and Officer Oliver had not seen Lewis commit a trespass. Additionally, the fact that Lewis was with French, with whom Oliver had interacted in the past based on her previous trespass and theft -23- No. 19-2389, United States v. Lewis offenses, does not factor into the Terry stop focused on Lewis inasmuch as reasonable suspicion must be particularized to the specific individual. See Cortez, 449 U.S. at 417–18. That French and Lewis were seen walking together “is not probative of criminal activity” as “[s]imply talking to someone else, without more, is innocent activity and does not indicate that a crime is happening or is about to take place.” Beauchamp, 659 F.3d at 570 . Further, the fact that an individual was in a high crime area late at night does not, “without more, give rise to a reasonable suspicion.” Caruthers, 458 F.3d at 467 . Otherwise, officers would be effectively allowed to stop anyone present in a purported high crime area at any time without a basis to suspect criminal activity; justifying a police stop, in part, by “labeling an area ‘high-crime’ raises special concerns of racial, ethnic, and socioeconomic profiling.” Id. Ultimately, the officer had no reasonable suspicion based on specific and articulable facts to believe that Lewis was involved in criminal activity in order to justify a Terry stop. Because there was no reasonable suspicion for the stop itself, the officer had no basis to conduct a frisk. See Arizona v. Johnson, 555 U.S. 323 , 330 (2009) (noting that “[w]hen the stop is justified by suspicion (reasonably grounded, but short of probable cause) that criminal activity is afoot” and the officer has “reasonable suspicion that the persons temporarily detained are armed and dangerous,” the officer can conduct “a limited search of outer clothing for weapons”). Accordingly, I would reverse the district court’s denial of Lewis’ motion to suppress evidence obtained during the Terry stop and remand the case for further proceedings. -24-

2021-01-26 18:00:37.068497+00

http://www.opn.ca6.uscourts.gov/opinions.pdf/21a0054n-06.pdf

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0054n.06 No. 19-4231 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jan 26, 2021 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE NORTHERN DISTRICT OF DAVID THOMAS, JR., ) OHIO ) Defendant-Appellant. ) ) BEFORE: BATCHELDER, GRIFFIN, and STRANCH, Circuit Judges. PER CURIAM. David Thomas, Jr., appeals his judgment of conviction and 200-month sentence for drug offenses. As set forth below, we AFFIRM. A federal grand jury returned an indictment charging Thomas with possession with intent to distribute 500 grams or more of a mixture and substance containing methamphetamine, in violation of 21 U.S.C. § 841 (a)(1), (b)(1)(A), and possession with intent to distribute 12.15 grams of a mixture and substance containing heroin and fentanyl, in violation of 21 U.S.C. § 841 (a)(1), (b)(1)(C). Thomas pleaded guilty to both counts without a plea agreement. Thomas’s presentence report set forth a base offense level of 32 based on the drug quantity involved, but his prior Ohio convictions for drug trafficking resulted in his designation as a career offender and an enhanced offense level of 37. Thomas’s criminal history score of 13 and his designation as a career offender established a criminal history category of VI. At sentencing, the district court granted Thomas a three-level reduction for his acceptance of responsibility, No. 19-4231, United States v. Thomas resulting in a guidelines range of 262 to 327 months of imprisonment. Thomas requested a 120- month sentence, the mandatory minimum penalty. Granting a downward variance from the career-offender range based on Thomas’s difficult upbringing, drug addiction, and family support, the district court sentenced him to 200 months of imprisonment followed by ten years of supervised release. This timely appeal followed. Thomas argues (1) that the district court abused its discretion in sentencing him to 200 months of imprisonment and (2) that his counsel provided ineffective assistance. We review the district court’s sentencing determination for procedural and substantive reasonableness under a deferential abuse-of-discretion standard. See United States v. Fugate, 964 F.3d 580 , 583 (6th Cir. 2020). Thomas appears to raise a procedural challenge to his sentence—that his prior drug-trafficking convictions do not constitute controlled substance offenses under the career-offender guidelines.1 But Thomas clarifies in his reply brief that he does not make this argument and instead argues that his designation as a career offender rendered his sentence unreasonably long—a challenge to the substantive reasonableness of his sentence. “The essence of a substantive-reasonableness claim is whether the length of the sentence is ‘greater than necessary’ to achieve the sentencing goals set forth in 18 U.S.C. § 3553 (a).” United States v. Tristan-Madrigal, 601 F.3d 629 , 632-33 (6th Cir. 2010). A challenge to a 1 We grant the government’s motion to take judicial notice of records from Thomas’s state-court cases. See Fed. R. Evid. 201; United States v. Ferguson, 681 F.3d 826 , 834 (6th Cir. 2012). Thomas pleaded guilty in the Summit County Court of Common Pleas to trafficking in cocaine in 2010 and to trafficking in heroin in 2015. The indictments in those cases charged Thomas with violating Ohio Revised Code § 2925.03(A), tracking the language of § 2925.03(A)(2): “he did knowingly prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a drug, . . . when [he] knows or has reasonable cause to believe that the controlled substance is intended for sale or resale by [him] or another person.” Because this court has held that a conviction under Ohio Revised Code § 2925.03(A)(2) qualifies as a controlled substance offense under the career-offender guidelines, United States v. Smith, 960 F.3d 883 , 891 (6th Cir. 2020), any challenge to Thomas’s career-offender designation on the basis that his prior drug- trafficking convictions did not constitute predicate offenses would fail. -2- No. 19-4231, United States v. Thomas sentence’s substantive reasonableness is “a complaint that the court placed too much weight on some of the § 3553(a) factors and too little on others.” United States v. Rayyan, 885 F.3d 436 , 442 (6th Cir. 2018). “Weighing those factors ‘is a matter of reasoned discretion, not math, and our highly deferential review of a district court’s sentencing decisions reflects as much.’” United States v. Castro, 960 F.3d 857 , 869 (6th Cir. 2020) (quoting Rayyan, 885 F.3d at 442). We apply a rebuttable presumption of substantive reasonableness to a sentence within the guidelines range. See United States v. Vonner, 516 F.3d 382 , 389-90 (6th Cir. 2008) (en banc). Where, as here, the district court grants a downward variance from the guidelines range, “simple logic compels the conclusion” that the “defendant’s task of persuading us that the more lenient sentence . . . is unreasonably long is even more demanding.” United States v. Curry, 536 F.3d 571 , 573 (6th Cir. 2008). Thomas has not met that demanding burden. Thomas argues that his career-offender designation resulted in an unreasonable sentence and that the mandatory minimum would have been “sufficient, but not greater than necessary,” to comply with § 3553(a). Citing United States v. Emmons, 617 F. App’x 414 (6th Cir. 2015), Thomas contends that there is criticism about the career-offender guidelines. But the court in Emmons upheld the application of the career-offender enhancement, pointing out that “[r]ecidivism has long been recognized as a legitimate basis for increased punishment.” 617 F. App’x at 416 (quoting Ewing v. California, 538 U.S. 11 , 25 (2003)). Thomas asserts that a ten- year-old conviction when he was nineteen years old unreasonably resulted in his designation as a career offender. That conviction was not an aberration but a part of a lengthy criminal history beginning when Thomas was fourteen years old, resulting in a criminal history category of VI without the career-offender designation. Thomas argues that his criminal history lacked any violence and that his current offenses did not involve any weapons or any injury. The district court pointed out that Thomas had resisted arrest or fled from law enforcement on a number of occasions, posing a danger to himself, to law enforcement, and to the community, and that “he -3- No. 19-4231, United States v. Thomas physically fought with a female officer who attempted to arrest him” in this case.2 The district court emphasized that Thomas had a lengthy pattern of criminal offenses and reentry violations and that he had numerous opportunities to modify his behavior and deal with his drug addiction. The district court also noted that his current offenses involved “a large quantity of dangerous drugs.” Nonetheless, the district court granted a downward variance from the career-offender range based on Thomas’s difficult upbringing, drug addiction, and family support. The record shows that the district court properly weighed the relevant sentencing factors, including Thomas’s designation as a career offender, and imposed a substantively reasonable sentence below the career-offender range. Thomas also claims ineffective assistance of counsel, asserting that he was prejudiced by the timing and manner in which counsel encouraged him to plead guilty to the indictment. According to Thomas, counsel “strong-armed” him into pleading guilty just two-and-a-half months after his indictment. “As a general rule, this Court declines to rule on claims of ineffective assistance of counsel on direct appeal.” United States v. Detloff, 794 F.3d 588 , 594 (6th Cir. 2015). “Although an exception to this rule exists where the record is sufficiently developed to support the claim,” that exception does not apply here. United States v. Crosgrove, 637 F.3d 646 , 663 (6th Cir. 2011). For example, Thomas refers to a “scathing” letter from counsel, but that letter is not part of the record. For these reasons, we GRANT the government’s motion to take judicial notice, DECLINE to review Thomas’s ineffective-assistance claim, and AFFIRM the district court’s judgment. 2 In his reply brief, Thomas challenges the government’s reliance on the presentence report for the facts underlying his arrest. But by failing to object to the facts set forth in the presentence report, Thomas accepted those facts. See Vonner, 516 F.3d at 385 . -4-

2021-01-26 18:00:37.786951+00

http://www.opn.ca6.uscourts.gov/opinions.pdf/21a0053n-06.pdf

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0053n.06 No. 19-5395 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jan 26, 2021 LARRY SHANE REDMON, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF YOROZU AUTOMOTIVE TENNESSEE, ) TENNESSEE INC., ) ) Defendant-Appellee. ) BEFORE: BATCHELDER, GRIFFIN, and STRANCH, Circuit Judges. PER CURIAM. Larry Shane Redmon appeals the district court’s judgment dismissing his employment discrimination complaint for failure to state a claim. As set forth below, we VACATE the district court’s judgment and REMAND for further proceedings. Redmon filed a complaint against his former employer, Yorozu Automotive Tennessee, Inc., claiming employment discrimination and harassment based on his sexual orientation and retaliation for filing charges with the Equal Employment Opportunity Commission in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to e-17. Redmon also asserted state- law claims for employment discrimination in violation of the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-101 et seq., negligent hiring and supervision, and tortious interference with business relationships. Yorozu Automotive filed a motion to dismiss Redmon’s complaint for failure to state a claim, asserting in relevant part that Title VII does not apply to claims based on sexual orientation. No. 19-5395, Redmon v. Yorozu Auto. Tenn., Inc. The district court granted Yorozu Automotive’s motion to dismiss. The court concluded that it was bound by Vickers v. Fairfield Medical Center, which rejected the contention that sexual orientation is a protected class under Title VII. 453 F.3d 757 , 762 (6th Cir. 2006). The district court dismissed Redmon’s Title VII claims with prejudice and declined to exercise supplemental jurisdiction over his state-law claims. This timely appeal followed. Redmon filed a petition for initial hearing en banc, which this court denied.1 Asserting that Vickers should be overruled, Redmon argues that he stated a claim for sex discrimination under Title VII by alleging that his employer subjected him to harassment and ultimately terminated his employment because of his sexual orientation. In response, Yorozu Automotive acknowledges that this case should be remanded to the district court for further proceedings in light of the Supreme Court’s intervening decision in Bostock v. Clayton County, which concluded that discrimination against an individual for being homosexual constitutes discrimination because of that individual’s sex under Title VII. 140 S. Ct. 1731 , 1741 (2020) (“[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”). Accordingly, we VACATE the district court’s judgment and REMAND for further proceedings. 1 We granted a motion by defendant to hold the case in abeyance pending the Supreme Court’s decision on the petitions for certiorari in Bostock v. Clayton County, (No. 17-1618), and Altitude Express, Inc.v. Zarda, (No. 17-1623). -2-

2020-11-21 02:57:14.126072+00

ALLEN KENT DYE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Dye v. Commissioner Docket No. 3855-84. United States Tax Court T.C. Memo 1985-455; 1985 Tax Ct. Memo LEXIS 177; 50 T.C.M. (CCH) 934; T.C.M. (RIA) 85455; August 28, 1985. Allen Kent Dye, pro se. James S. Daubney, for the respondent. SWIFT MEMORANDUM FINDINGS OF FACT AND OPINION SWIFT, Judge: In a statutory notice dated November 16, 1983, respondent determined deficiencies in petitioner's Federal income tax liabilities and additions to tax as follows: Additions to Tax YearDeficiencySec. 6651(a) 1Sec. 6653(a)Sec. 6654 1979$7,086.67$614.92$354.33$54.36 19808,229.84775.21411.49116.20 198111,942.002,751.75597.10825.62 The issues for decision are (1) whether wages constitute taxable income; (2) whether petitioner is liable for additions to tax under section 6651(a)(1) for failure to file an income tax return without reasonable cause; (3) whether petitioner is liable for additions to tax under section 6653(a) for negligence or intentional*179 disregard of rules and regulations; (4) whether petitioner is liable for additions to tax under section 6654 for failure to pay estimated taxes; and (5) whether petitioner is liable for damages to the United States under section 6673. FINDINGS OF FACT Petitioner, Allen Kent Dye, resided in Newark, California, at the time he filed his petition herein. During the taxable years in issue, petitioner was employed as an iron worker by California Erectors-Bay Area Incorporated, from which he received wages in the following amounts: YearWages 1979$25,383.20 198027,716.30 198135,156.58 Petitioner failed to file Federal income tax returns for the years 1979 and 1981. Petitioner filed a purported Federal income tax return for 1980, dated March 1, 1981, but that document contains no information relating to his income or deductions. Rather, petitioner merely wrote the words "object" or "none" in the relevant spaces thereon and attached a 15-page document that purports to set forth "grounds for asserting and claiming my right against self-incrimination on my tax return." On February 23, 1981, petitioner filed a W-4 Form (Employee's Withholding Allowance Certificate) *180 with his employer, upon which he claimed to be exempt from all withholding, on the basis of having owed no Federal income taxes for 1980 and anticipating none for 1981. Petitioner timely filed his petition herein on February 14, 1984. Respondent filed his answer on April 12, 1984. By a letter dated June 11, 1985, respondent advised petitioner that respondent would seek an award of damages herein on the grounds that petitioner's arguments were frivolous. Trial of this case was held on June 25, 1985, in San Francisco, California. OPINION Petitioner argues that he is not liable for the deficiencies determined by respondent on the grounds that: (1) Wages do not constitute taxable income; (2) the filing of a Federal income tax return and the payment of taxes are voluntary; and (3) petitioner's Fifth Amendment rights against self-incrimination would be violated if he were compelled to file a Federal income tax return, provide financial records to respondent, pay taxes or testify in this proceeding. The argument that wages do not constitute taxable income has been addressed on numerous occasions by this and other courts and has been consistently rejected under circumstances similar*181 to those herein. See, for example, Rowlee v. Commissioner,80 T.C. 1111">80 T.C. 1111 (1983), dismissed on appeal (2d Cir. 1984). That argument merits no further discussion herein. We will comment only briefly on petitioner's latter two contentions. Petitioner refers to various Internal Revenue Service publications, news releases, and internal memoranda in support of his argument that the filing of a tax return and the payment of taxes are voluntary acts. As the Court pointed out to him at trial, petitioner misconstrues the term "voluntary compliance." The fact that under our system of Federal income taxation in the United States the vast majority of taxpayers voluntarily and on their own initiative report and remit their Federal taxes does not relieve petitioner or any other taxpayer properly subject to Federal income taxation of the legal obligation to file tax returns and to pay their taxes. If a taxpayer fails to make a tax return required by law or regulation, the Secretary (or his agent) may make such a return on the basis of the information available to the Secretary. See section 6020(b). With regard to petitioner's Fifth Amendment allegations, petitioner was advised*182 by the Court that a criminal prosecution arising out of his tax obligations pending in this case was highly unlikely, and petitioner agreed that the probability of such a prosecution was remote. The privilege against self-incrimination does not apply where the possibility of criminal prosecution is remote or unlikely. Rogers v. United States,340 U.S. 367">340 U.S. 367, 374 (1951). The privilege only applies where there is a real and appreciable danger of self-incrimination and reasonable cause to apprehend such danger. Edwards v. Commissioner,680 F.2d 1268">680 F.2d 1268, 1270 (9th Cir. 1982), affg. per curiam an unreported decision of this Court. 2 Petitioner has certainly not demonstrated any such real or appreciable danger, and in fact has admitted that no such danger exists. The Fifth Amendment privilege may not be used merely as a method of avoiding payment of taxes owed, which would appear to be petitioner's intended objective. 3 Petitioner's general reliance on his Fifth Amendment rights does not relieve him of the burden*183 of proof in this proceeding. Welch v. Helvering,290 U.S. 111">290 U.S. 111 (1933); Rule 142(a). Petitioner has not introduced any evidence whatsoever to controvert respondent's determinations. We sustain respondent as to the tax deficiencies determined herein. The next issue is the applicability of the additions to tax under section 6651(a) and section 6653(a) for failure to file a tax return for each of the years in issue and for negligence. Petitioner was clearly required to file a Federal income tax return for each year in issue. Sec. 6012(a). The "Fifth Amendment" return petitioner filed for 1980 does not constitute a valid Federal income tax return because it did not contain sufficient information relating to the taxpayer's income and deductions from which the proper tax liability could be calculated. Hatfield v. Commissioner,68 T.C. 895">68 T.C. 895, 898 (1977). See also Beard v. Commissioner,82 T.C. 766">82 T.C. 766 (1984). Petitioner bears the burden of proving both that his failure to file timely returns was due to reasonable cause and not willful neglect, and that he was not negligent or did not intentionally disregard the rules and regulations. *184 Foster v. Commissioner,80 T.C. 34">80 T.C. 34, 237 (1983); Neubecker v. Commissioner,65 T.C. 577">65 T.C. 577, 586 (1975); Bixby v. Commissioner,58 T.C. 757">58 T.C. 757, 791-792 (1972). Petitioner has offered no legitimate excuse for his repeated failures to file returns. We find for respondent on both of these issues with respect to all of the years involved herein. The next issue for consideration is the applicability of the addition to tax under section 6654 for underpayment of estimated taxes. Petitioner also bears the burden of proof on this issue. Hollman v. Commissioner,38 T.C. 251">38 T.C. 251, 267 (1962). The addition to tax under section 6654(a) is mandatory unless petitioner can demonstrate that he comes within one of the computational exceptions of section 6654, Grosshandler v. Commissioner,75 T.C. 1">75 T.C. 1, 20-21 (1980), which petitioner has failed to do. We therefore uphold respondent on this issue. The final issue is whether damages should be awarded to the United States under section 6673 for the institution or maintenance of this lawsuit. 4 None of the arguments made by petitioner has any basis in law. The same arguments have*185 been rejected repeatedly by this and many other courts. Petitioner appeared to be a reasonably intelligent individual, who took great pains to ensure that his petition, trial brief and legal citations were all in proper form. He was repeatedly warned by respondent that his arguments were likely to be viewed as frivolous by the Tax Court, yet he persisted in bringing this case to trial to make those same, worn out arguments. If petitioner read the relevant legal authorities that were pointed out to him by respondent, the lack of merit in his arguments should have been obvious to him. Petitioner's actions have resulted in a waste of judicial and administrative resources. Accordingly, we award damages to the United States in the amount of $1,500.To reflect the above, *186 Decision will be entered for the respondent. Footnotes

2021-01-26 17:00:23.049269+00

http://www.ca10.uscourts.gov/opinions/20/20-1234.pdf

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT January 26, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 20-1234 (D.C. No. 1:19-CR-00257-WJM-1) ERIC KING, (D. Colo.) Defendant - Appellant. _________________________________ ORDER AND JUDGMENT * _________________________________ Before BRISCOE, LUCERO, and MATHESON, Circuit Judges. _________________________________ Eric King is detained pending trial on a criminal charge. He filed a motion with the district court seeking a hearing and amendment of his detention order. The district court denied the motion in April 2020. King then had fourteen days to appeal the detention order. See Fed. R. App. P. 4(b)(1)(A)(i). That deadline came and went without him filing a notice of appeal. Several weeks later, he unsuccessfully filed a motion asking the district court to reconsider its detention order. Then he filed a * 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. notice of appeal, declaring his intent to appeal the reconsideration order. His memorandum brief, however, challenges only the April 2020 detention order. His appeal of that order is untimely. See id. Because Rule 4(b)(1)(A) is a claim-processing rule, King’s failure to file a timely notice of appeal does not affect our jurisdiction. See United States v. Garduño, 506 F.3d 1287 , 1290–91 (10th Cir. 2007). Although Rule 4(b)(1)(A) is not jurisdictional, it is inflexible, assuring relief to a party who properly raises it. Garduño, 506 F.3d at 1291 . The government properly invoked the rule, so we must dismiss this appeal as untimely. See id. at 1292. The appeal is dismissed. Entered for the Court Per Curiam 2

2020-01-17 22:01:35.896005+00

Siefkin

*741OPINION. Siefkin : One of the prerequisites to personal service classification as that status is defined in section 200, Act of 1918, is that the principal owners or stockholders be regularly engaged in the active conduct of corporate affairs. Insufficient proof has been offered to establish compliance with such requirement. The activities of Jacobson were occasional rather than regular. The .only evidence we have *742concerning the number of shares of stock held by Jacobson is the proportions in which the dividend declared after the close of the taxable year was distributed between the several stockholders. Such evidence indicates he held 16% of the outstanding stock. But there is nothing in the record to show and we can not assume that the dividends were distributed in proportion to stockholdings. Nor does the record show that capital was not a material income-producing factor as required by the statutory definition. The evidence upon this point is incomplete due, in part, perhaps, to petitioner’s inability to produce its books which have been lost in moving.since the year in question. Such evidence as. we have indicates capital, invested and borrowed, was a factor in the production of income. A plant which was necessary to petitioner’s business had been installed in the leased premises at considerable capital cost'. The remainder (aside from that invested in office equipment) of what appears to be rather a substantial amount of capital, when compared to the income produced, was used to take up drafts of shippers in advance of sale of shipments by petitioner. The testimony that this was merely a matter of accommodation to the shippers and of doubtful necessity to the business is not very convincing, in view of the fact that the business was highly competitive and that the degree of necessity led to the borrowing of the funds. Prey Brothers Live Stock Commission, 9 B. T. A. 534. Respecting petitioner’s alternative contentions that it is entitled to special assessment or, failing that, additional invested capital on account of assets erroneously excluded, the proof is likewise insufficient. The record shows only that petitioner’s books have been lost, and that shippers’ lists, good will, and equipment turned in at incorporation were excluded from invested capital. The only evidence concerning the value of any of such assets is the testimony of one who had become interested in the corporation some years after its organization. He testified that the present shippers’ list could be sold for $20,000 and, in fact, a part thereof was sold in 1925 for $5,000. Obviously such record contents do not present a case under section 327 requiring special assessment. Nor does it establish the value of the alleged assets when paid in to the corporation, which value determines the invested capital allowable therefor. Judgment will be entered for the respondent.

2021-01-26 18:00:20.366794+00

https://www2.ca3.uscourts.gov/opinarch/191287p.pdf

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 19-1287 UNITED STATES OF AMERICA v. CHARLES J. SENKE, Appellant On Appeal from the United States District Court for the Middle District of Pennsylvania (District Court No.: 3:16-cr-00373-001) District Judge: Hon. James M. Munley Argued July 8, 2020 (Opinion Filed: January 25, 2021) Before: McKEE, BIBAS, and FUENTES, Circuit Judges. Robert Epstein [Argued] Federal Community Defender Office for the Eastern District of Pennsylvania 601 Walnut Street The Curtis Center, Suite 540 West Philadelphia, PA 19106 Counsel for Appellant Michelle L. Olshefski [Argued] Office of United States Attorney 235 North Washington Avenue P.O. Box 309, Suite 311 Scranton, PA 18503 Counsel for Appellee OPINION FUENTES, Circuit Judge. Appellant Charles Senke challenges his conviction for attempted sex offenses involving a minor, raising four objections. First, he contends that it was error for the District Court not to inquire into his motions regarding counsel’s performance. Second, he asserts that the District Court erred when it failed to verify at sentencing that he discussed the presentence report with counsel. Third, he takes issue with several special conditions of supervised release. Finally, he argues that a special assessment fee was erroneously imposed pursuant to a statute enacted after his offense conduct. 2  While the District Court’s failure to address Senke’s complaints regarding his counsel was an abuse of discretion under our precedent in United States v. Diaz, 1 we decline to review this error for prejudice on direct appeal in the first instance. We also conclude that Senke was not prejudiced by the District Court’s failure to verify on the record that Senke and his attorney discussed the presentence report before imposing sentence. Finally, because the special conditions of supervised release banning Senke’s computer and internet use run afoul of our precedent in United States v. Holena, 2 and because the Government concedes that the imposition of these conditions and a special assessment fee was plain error, we will remand for further proceedings on these issues. Accordingly, we will affirm in part and vacate and remand for further proceedings in part. I. BACKGROUND A. Offense Conduct Appellant Charles Senke was arrested after striking up an online conversation on a popular social networking site with an undercover detective posing as an underage boy. In the course of that correspondence, Senke requested naked photographs of the underage boy, asked about the boy’s sexual experiences, transmitted graphic photographs of himself and others, and offered to buy the boy gifts. During these exchanges, Senke was reminded multiple times that he was purportedly conversing with a minor. 1 951 F.3d 148 (3d Cir. 2020). 2 906 F.3d 288 (3d Cir. 2018). 3  The pair eventually made plans to meet. Senke agreed to travel to a mall near where he believed the boy lived. On the day of the planned meeting, Senke’s vehicle was spotted by undercover detectives and followed into the mall parking lot. As Senke pulled into a parking spot, the detectives stopped the vehicle and took Senke into custody. Detectives found a cell phone, condoms, personal lubricant, a laptop computer, a memory card and other personal items in Senke’s car. B. Procedural History Senke was charged in a three-count Superseding Indictment by a federal grand jury in Scranton, Pennsylvania for his attempts to engage in illicit sexual conduct with a minor. 3 He appeared before the District Court and pleaded not guilty. He was then appointed a federal public defender to represent him. Less than two months later, the federal public defender filed a motion to withdraw as counsel, citing irreconcilable differences regarding case strategy. The District Court held a hearing on the matter, at which time Senke indicated that he wished to proceed pro se. After interviewing Senke, the District Court permitted him to proceed pro se, with the public defender as standby counsel. Acting in a pro se capacity thereafter, Senke filed a plethora of pretrial motions, challenging the charges, the evidence, and his detention. The motions were denied. 3 Senke was charged with violating 18 U.S.C. §§ 2423 (b), 2422(b), 1470. 4 Following a conversation at a subsequent detention hearing, the District Court indicated that Senke agreed to accept appointed counsel. The District Court appointed a Criminal Justice Act attorney, Matthew T. Comerford, to represent Senke going forward. i. Pretrial Complaints about Comerford In April 2018, Senke filed a pro se motion titled, “Pro Se Omnibus Pre-Trial Motion” and “Inadequate Representation.” 4 In that motion, Senke asserted that Comerford, inter alia, (i) tried to pressure him to take a plea deal, (ii) did not take or return phone calls, (iii) refused to go over evidence, calling it “to[o] disgusting,” (iv) failed to turn over discovery to Senke, and (v) was not preparing a defense strategy for trial. 5 Senke also asserted that with Comerford as counsel, he “cannot get a fair and just trial.”6 Senke did not, however, specifically request the appointment of new counsel. The District Court took no action on this motion. Instead, Comerford filed a motion in July 2018, requesting that co-counsel be added to Senke’s defense team. The District Court granted the motion, appointing Comerford’s associate, Curt M. Parkins, to assist at trial. A pretrial conference was held in August 2018. The conference was attended by Comerford and Parkins, and the prosecutor, but not Senke. At the conference, Comerford indicated that Senke was giving him “a hard time” about filing 4 App. 315 -17. 5 App. 316 . 6 App. 317 . 5 additional pretrial motions.7 Comerford stated, “I’m just letting you know he’s not happy with me that I am not filing more motions.” 8 The District Court responded, “[h]e doesn’t have much of a chance of losing you, right. You’re the second or third guy on this deal.” 9 In apparent reference to Senke’s pretrial letter regarding counsel, Comerford stated, “[Senke is] putting in writing that I am not doing things.” 10 This conversation prompted the prosecutor to ask, “He’s not trying to fire you, is he?”11 Comerford responded, “[n]ot that I know of,” and Parkins stated, “[j]ust difficult.” 12 The hearing concluded without any further mention of Senke’s letter. In the months leading up to trial, Senke did not submit any additional requests or communications to the District Court regarding his defense team. Trial commenced on October 2, 2018 with Comerford and Parkins representing Senke. Defense counsel did not present any evidence, and relied solely on a defense of entrapment. The next day, the jury returned a guilty verdict on all counts. ii. Post-trial Complaints about Comerford While awaiting sentencing, Senke filed three pro se motions regarding counsel. The first motion, requested that 7 App. 337 . 8 App. 338 . 9 Id. 10 App. 338 -39. 11 App. 339 (alterations in original). 12 Id. 6 Comerford be substituted for “an appealant [sic] attorney.” 13 The second motion, informed the District Court that Senke sent a complaint to the Disciplinary Board and requested “substitution of counsel in regard to the above-mentioned matters.” 14 The third motion, requested “a CJA Appealant [sic] appointment by the Court.” 15 The District Court denied the first and third motions in written orders. In denying the first motion, the District Court footnoted its understanding of Senke’s request for an “appealant [sic]” attorney as follows: The deadline for defendant filing an appeal runs from the entry of judgment. Fed. R. App. P. 4(b)(1) (“In a criminal case, a defendant’s notice of appeal must be filed in the district court within 14 days after the later of … the entry of either the judgment or order being appealed; or … the filing of the government’s appeal.”) The judgment will be entered after defendant is sentenced. Upon appeal, the Third Circuit Court of Appeals has authority to appoint counsel for the defendant. 16 In denying the third motion, the District Court stated that Senke’s “pro se motion to substitute counsel for appellate reasons” was denied because “[t]he appeals court will deal with 13 App. 637 . 14 App. 638 . 15 App. 642 . 16 App. 641 . 7 appointing defendant counsel for appeal purposes.” 17 The District Court did not separately respond to the second motion. iii. Sentencing After the jury verdict, the District Court ordered a presentence investigation report (the “PSR”) to be filed. Senke submitted his own objections to the draft PSR, and Comerford filed a sentencing memorandum on Senke’s behalf. The final PSR was filed, and an addendum was concurrently filed addressing Senke’s objections. As relevant on appeal, the District Court did not confirm at sentencing that Senke and Comerford had an opportunity to discuss the PSR together. Sentencing was held on January 29, 2019. The final PSR provided a Guidelines imprisonment range of 168 to 210 months. Prior to imposing the sentence, the District Court sustained an objection with respect to a five-level enhancement under U.S.S.G. § 4B1.5(b)(1) for repeat prohibited sexual conduct, and adjusted Senke’s total offense level from 35 to 30. Because Count II carried a statutory mandatory minimum sentence of ten years’ imprisonment, the adjusted Guidelines range was 120 to 121 months. The District Court sentenced Senke to the mandatory minimum term and ten years of supervised release. Additionally, it imposed 17 special conditions of supervised release, including: 1. You must submit to substance abuse testing to determine if you have used a prohibited substance; 17 App. 650 . 8 6. You must not have direct contact with any child you know or reasonably should know to be under the age of 18, including your own children, without the permission of the probation officer; 7. You must not go to, or remain at, any place where you know children under the age of 18 are likely to be, including parks, schools, playgrounds, and childcare facilities; 8. You must not go to, or remain at, a place for the primary purpose of observing or contacting children under the age of [18]; 10. You must submit to periodic polygraph testing at the discretion of the probation officer as a means to ensure that you are in compliance with the requirements of your supervision or treatment program; 11. You must not possess and/or use computers . . . or other electronic communications or data storage devices or media; 12. You must not access the Internet except for reasons approved in advance by the probation officer; 13. You must allow the probation officer to install computer monitoring software on any computer . . . you use; 14. To ensure compliance with the computer monitoring condition, you must allow the 9  probation officer to conduct initial and periodic unannounced searches of any computers . . . subject to computer monitoring; 15. You must submit your person, property, house, residence, vehicle, papers, computers . . . other electronic communications or data storage devices or media, or office, to a search conducted by a United States probation officer. 18 Senke was also ordered to pay a special assessment fee of $10,000 under the Justice for Victims of Trafficking Act of 2015 (the “JVTA”). 19 This appeal followed. II. JURISDICTION The District Court had subject matter jurisdiction over this criminal case pursuant to 18 U.S.C. § 3231 . We have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a). The District Court entered its judgment on January 30, 2019, and a timely notice of appeal was filed on February 1, 2019. 18 App. 13 -14, 665-67. 19 18 U.S.C. § 3014 10 III. DISCUSSION Senke raises four issues on appeal: (1) the District Court’s failure to inquire into his motions regarding counsel; (2) the District Court’s failure to verify that he and his attorney discussed the PSR before sentencing; (3) the imposition of contradictory, vague, excessively delegative, or overbroad conditions of supervised release; and (4) the imposition of a special assessment fee pursuant to a statute enacted after the offense conduct. We address each in turn. A. The Failure to Inquire Senke’s primary argument is that the District Court erred in not inquiring into his motions regarding counsel. We review a district court’s decision on a motion for appointment of counsel for abuse of discretion. 20 The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” 21 As relevant here, indigent defendants are permitted to request the appointment of new counsel, or to proceed pro se, if they are unhappy with their current court- appointed attorney. 22 If a defendant requests substitute counsel, the court must evaluate whether the defendant’s justification for seeking new counsel is based on “good cause” to “justify a continuance 20 See United States v. Gibbs, 190 F.3d 188 , 207 n.10 (3d Cir. 1999). 21 U.S. Const. amend. VI. 22 See United States v. Welty, 674 F.2d 185 , 187 (3d Cir. 1982). 11 of the trial in order to allow new counsel to be obtained.” 23 We have explained that good cause can be “a conflict of interest, a complete breakdown of communication, or an irreconcilable conflict with the attorney.” 24 “[T]he district court must engage in at least some inquiry as to the reason for the defendant’s dissatisfaction with his existing attorney” to determine whether the defendant has shown good cause. 25 We recently addressed the issue of a court’s failure to inquire into a motion for substitute counsel in United States v. Diaz. 26 There, the indigent criminal defendant wrote to the District Court five times before trial regarding issues with appointed counsel. Despite not specifically requesting new counsel in the first two communications, the District Court ordered defendant’s attorney to respond to the letters. The attorney did not do so. On the third attempt, defendant stated, “I am requesting that you consider appointing me new counsel.” 27 The District Court took no action. Instead, one month later, defendant’s attorney filed a motion for continuance in which he represented that all issues between counsel and defendant were resolved. Counsel and defendant then appeared together at a pretrial conference, and neither raised any issues involving representation. Nevertheless, 23 Id. 24 United States v. Goldberg, 67 F.3d 1092 , 1098 (3d Cir. 1995). 25 Welty, 674 F.2d at 187 ; see also Martel v. Clair, 565 U.S. 648 , 664 (2012) (“As all Circuits agree, courts cannot properly resolve substitution motions without probing why a defendant wants a new lawyer.”). 26 951 F.3d 148 (3d Cir. 2020). 27 Id. at 153 . 12 defendant wrote to the District Court two more times before trial raising similar concerns. But, defendant did not renew his request for new counsel in either of these letters. The case proceeded to trial without further inquiry. In finding no abuse of discretion, we noted that “the District Court may not have been as attentive to [defendant’s] complaints regarding his counsel as it should have been,” but that soon after defendant’s request, the District Court “had good reason to believe [the attorney] was communicating with [defendant] such that [defendant’s] request was withdrawn or moot.” 28 We explained that the information the District Court received in the motion for continuance made it clear that the attorney was paying attention to defendant’s requests, and intervention was unnecessary. Thus, Diaz presented “a unique circumstance,” and the “District Court’s inaction would . . . normally raise serious questions.” 29 Turning to the case at hand, we are yet again presented with a claim of a district court’s inaction. The Government argues that because Senke did not explicitly request substitute counsel in his pretrial motion, the District Court was under no obligation to act. This places an inappropriately strict requirement on pro se defendants to know the law and articulate the exact action they desire from the court. 30 And 28 Id. at 152, 155 . 29 Id. at 155 . 30 Higgs v. Att’y Gen., 655 F.3d 333 , 339 (3d Cir. 2011) (explaining that our “policy of liberally construing pro se submissions is driven by the understanding that . . . [there] is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent 13 Diaz suggests that district courts should at least attempt to inquire further when made aware of a possible breakdown in communication. 31 Moreover, we have said that a communication breakdown could be sufficient for a good cause finding, and we have not made such a finding contingent on the filing of a clearly articulated motion.32 Here, the District Court was made aware of a potential breakdown in communication. Similar to the defendant in Diaz, Senke submitted a communication to the District Court in which he complained about his attorney, but he stopped short of asking for substitute counsel. The communication raised serious issues, including that Comerford was not preparing for trial and had called the evidence “to[o] disgusting” to review with Senke. 33 This alone gives us pause as to the District Court’s inaction. But then at a pretrial conference, Comerford brought the strained relationship to the District Court’s attention. Referencing Senke’s pretrial motion, Comerford explained that the conflict stemmed from his refusal to file additional pretrial motions, and Senke’s insistence that he do so. Of course, an attorney is not required to take every action that his client desires. 34 But forfeiture of important rights because of their lack of legal training”) (internal quotation marks and citations omitted). 31 Diaz, 951 F.3d at 155 (“It is clear that the Court was aware of [defendant’s] concerns, and it took some action to remedy the situation when it ordered [the attorney] to file a response to [defendant’s] [first] letter.”). 32 See Welty, 674 F.2d at 188 . 33 App. 316 . 34 See Taylor v. Illinois, 484 U.S. 400 , 418 (1988) (“The adversary process could not function effectively if every 14 this conversation, coupled with Senke’s letter raising alarming concerns, should have indicated to the District Court that further inquiry was necessary. In Diaz, we cautioned that “[a]lthough the requisite inquiry may consider a variety of sources and need not include a one-on-one colloquy with the defendant,” we must also consider “the importance of allowing the defendant, as well as counsel, the opportunity to be heard on the matter.” 35 We further warned that “if a district court fails to make ‘any on- the-record inquiry as to the reasons for the defendant’s dissatisfaction with his existing attorney,’ it abuses its discretion.” 36 Here, the District Court neither allowed Senke the opportunity to clarify his communication, nor made any searching inquiry on the record that would satisfy us that it had deduced the reasons for Senke’s dissatisfaction. Indeed, at the pretrial conference, which Senke was not a part of, the only colloquy regarding the meaning of Senke’s communication occurred between defense counsel and the prosecutor. Heeding our warnings in Diaz, we are not convinced that based tactical decision required client approval.”); see also Gonzalez v. United States, 553 U.S. 242 , 248-50 (2008). 35 951 F.3d at 154; see United States v. Hodge, 870 F.3d 184 , 202 (3d Cir. 2017) (“[B]y only gathering information from counsel whom a defendant wishes to reject, but not the defendant himself, a trial court creates some risk of overlooking some latent, legitimate reason for substitution that is not articulable by his counsel.”). 36 Diaz, 951 F.3d at 154 (citing McMahon v. Fulcomer, 821 F.2d 934 , 944 (3d Cir. 1987)). 15 on perfunctory exchanges at one pretrial conference where (i) the defendant was not present, and (ii) the District Court conducted no further inquiry, the District Court had “good reason to believe” that Comerford and Senke were communicating again before trial.37 Moreover, Senke reiterated his concerns regarding Comerford’s lack of communication in his post-trial motions. He also raises the issue before us, where there is a question of whether Comerford reviewed the PSR with Senke. It seems then, these communication issues were not resolved, and we see no reason for the District Court to believe that they were before trial. For these reasons, we are persuaded that the District Court’s failure 37 Diaz, 951 F.3d at 155; see also McMahon, 821 F.2d at 942- 44 (holding that trial court erred by denying defendant’s request for a continuance to obtain new counsel based “upon counsel’s communication that he knew of no reasonable basis for his discharge . . . without engaging in any on-the-record inquiry as to the reasons for the defendant’s dissatisfaction with his existing attorney.”). It is worth noting that the District Court’s comment that Senke “doesn’t have much of a chance of losing” Comerford because he was “the second or third guy on this deal,” is irrelevant to our analysis. App. 338. We have been clear that the obligation to inquire is in no way dependent on the number of requests a defendant has made, nor the number of attorneys that have represented a defendant. See Diaz, 951 F.3d at 154-55; McMahon, 821 F.2d at 942 (“Even when the trial judge suspects that the defendant's contentions are disingenuous, and motives impure, a thorough and searching inquiry is required.”). And these comments do not suggest that the District Court reviewed and considered Senke’s motion. 16 to inquire into Senke’s pretrial motion was an abuse of discretion. Finding error, we must evaluate its impact and proper remedy. 38 This analysis is contingent upon the right implicated 38 Our dissenting colleague points to dicta in Martel suggesting that the Court of Appeals in that case had “ordered the wrong remedy even assuming the District Court had abused its discretion in denying [the habeas petitioner’s] substitution motion without inquiry.” Martel, 565 U.S. at 666 n.4; see also dissent at page 15. The Supreme Court there noted that had the Court of Appeals correctly determined that the district court abused its discretion in declining to evaluate the petitioner’s request for new counsel, it should have “remand[ed] to the District Court to decide whether substitution was appropriate at the time of [petitioner’s] letter. Unless that court determined that counsel should have been changed, the Court of Appeals had no basis for vacating the denial of [petitioner’s] habeas petition.” Martel, 565 U.S. at 666 n.4. Our dissenting colleague argues we should remand here for the same purpose, and that Martel “rejected the functional equivalent of a prejudice standard, too.” Dissent at page 15 n.66. But this reads too much into the Supreme Court’s suggestion. The language our colleague cites for the rejection pertains to the separate question of what a capital habeas petitioner must show to substitute counsel under 18 U.S.C. § 3599 . See Martel, 565 U.S. at 656-63 . The Supreme Court held the same “interests of justice” standard on motions to substitute counsel in non- capital criminal cases should also apply to capital habeas petitioners seeking new counsel. Id. at 660, 663 . The Court did not address whether a defendant who had a substitution motion wrongfully denied would have to demonstrate 17 by Senke’s claim. Senke asserts that the failure to inquire into a defendant’s dissatisfaction with appointed counsel is structural error—meaning reversal is required regardless of whether the defendant can show prejudice or harm. But he is confusing his right to any counsel with his right to effective counsel. These rights are distinct, and so, too, is our analysis of each. The cases Senke and the dissent rely on for the assertion of structural error involved defendants that sought substitution of counsel on the eve of trial, had their request denied, and therefore were forced to choose between going to trial pro se or with counsel they were dissatisfied with. 39 Where a defendant then elects to proceed pro se, he or she must knowingly and voluntarily waive the right to any counsel. 40 This requires the district court to conduct an analytically distinct inquiry “guaranteeing that the defendant understands what he is giving up, that he is ‘made aware of the dangers and disadvantages of self-representation.’” 41 In these cases, it was the failure to conduct this separate inquiry that required prejudice. But its suggestion that remand would be necessary even if the Court of Appeals concluded that the district court abused its discretion by not inquiring into the basis for the substitution motion suggests that the failure to inquire into dissatisfaction with counsel, without more, is not structural error. 39 Welty, 674 F.2d at 187 ; Goldberg, 67 F.3d at 1096 ; McMahon, 821 F.2d at 936-37 . 40 Welty, 674 F.2d at 190 . 41 Id. (quoting Faretta v. California, 422 U.S. 806 , 835 (1975)). 18 reversal, not an inadequate inquiry into the reasons for a defendant’s dissatisfaction with counsel. 42 To be certain, if Senke were asserting that his right to retained counsel of choice was violated, such deprivation would be structural error.43 The same would be true if he were 42 Welty, 674 F.2d at 194 (“Because this record does not disclose that Welty effectively waived his constitutional right to counsel, we are obliged to reverse his conviction.”); Goldberg, 67 F.3d at 1099, 1102 (finding “no abuse of discretion in the denial of the continuance” to seek retained counsel, but vacating conviction because “the district court failed to inform Goldberg of the risks of self-representation in accordance with Faretta and Welty.”); McMahon, 821 F.2d at 946 (“[W]e hold that the trial court failed properly to determine whether McMahon’s waiver of his sixth amendment right of counsel was knowing and intelligent.”). McMahon made this point particularly clearly, holding that it would have reversed the petitioner’s conviction in that case “even if [the court] were to have found the trial judge’s denial of petitioner’s continuance motion [to seek new retained counsel] proper.” 821 F.2d at 944 . The dissent also misreads the rationale of these decisions. They did not require reversal because “the defendants were forced to choose between representing themselves and counsel that they had lost faith in.” Dissent at page 12. This Court reversed because they had not effectively waived their right to counsel. 43 See United States v. Gonzalez-Lopez, 548 U.S. 140 , 148-52 (2006) (affirming Eighth Circuit’s reversal of conviction where defendant was deprived of his right to paid counsel of his choosing); see also United States v. Rankin, 779 F.2d 956 , 960- 61 (3d Cir. 1986) (vacating and remanding for new trial where 19 asserting that he was denied the right of self-representation. 44 This is because a choice-of-counsel violation or a self- representation violation occurs at the moment the defendant’s choice is wrongfully denied. 45 But the Supreme Court has been careful to distinguish these rights from the right to effective assistance of counsel. The right to effective counsel is derived from the guarantee of a fair trial in the Due Process Clause, and the elements of a fair trial are defined through the Sixth Amendment. 46 The Sixth Amendment recognizes the right to effective assistance “because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results.” 47 Accordingly, “[a]n accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.”48 A violation of the right to effective counsel requires a showing district court refused to continue trial date, forcing defendant to proceed to trial with appointed counsel when his retained counsel of choice was unavailable). 44 See McKaskle v. Wiggins, 465 U.S. 168 , 177-78 n.8 (1984). 45 See Gonzalez-Lopez, 548 U.S. at 150 . 46 Id. at 146 (citing Strickland v. Washington, 466 U.S. 668 , 684-85 (1984)). 47 Strickland, 466 U.S. at 685 ; see Gonzalez-Lopez, 548 U.S. at 147 (explaining that “[t]he earliest case generally cited for the proposition that ‘the right to counsel is the right to the effective assistance of counsel,’ . . . was based on the Due Process Clause rather than on the Sixth Amendment[.]” (citing McMann v. Richardson, 397 U.S. 759 , 771 n.14 (1970))). 48 Strickland, 466 U.S. at 685 . 20 of prejudice, because “[c]ounsel cannot be ineffective unless his mistakes have harmed the defense[.]”49 By contrast, the right to counsel—including, inter alia, the right to counsel of choice and the right to self- representation—“has never been derived from the Sixth Amendment’s purpose of ensuring a fair trial.”50 Rather, such rights are “the root meaning of the constitutional guarantee.”51 The deprivation of these rights qualifies as structural error because, in part, the consequences “‘are necessarily unquantifiable and indeterminate.’” 52 The Supreme Court has expressed a reluctance to expand the narrow category of rights that qualify for per se reversal. 53 Here, Senke’s claim does not fall into one of the established categories of structural error. He has not asserted 49 Gonzalez-Lopez, 548 U.S. at 147 (internal quotation marks omitted). 50 Id. at 147-48 ; see Faretta, 422 U.S. at 819-21 . 51 Gonzalez-Lopez, 548 U.S. at 147-48 . 52 Gonzalez-Lopez, 548 U.S. at 150 (quoting Sullivan v. Louisiana, 508 U.S. 275 , 282 (1993)). 53 See generally, Mickens v. Taylor, 535 U.S. 162 , 173-74 (2002) (limiting automatic reversal rule established in Holloway v. Arkansas, 435 U.S. 475 (1978) and holding that to demonstrate a Sixth Amendment violation where trial court failed to inquire into potential conflict of interest, defendant had to establish conflict adversely affected counsel’s performance); see id. at 166 (collecting cases “where assistance of counsel has been denied entirely or during a critical stage of the proceeding[,]” sparing the defendant from the need to show effect on the outcome of trial). 21 that he was deprived of his right to counsel of choice. Indeed, he cannot, because the right to choose one’s own counsel does not extend to defendants who require appointed counsel. 54 And he has not claimed that he was somehow deprived of his right to knowingly and intelligently represent himself. 55 Nor has Senke claimed that Comerford had any conflict of interest, 56 or that he was so “embroiled in irreconcilable conflict” with Comerford that he was deprived “of the effective assistance of any counsel whatsoever,” as some of our sister circuits have examined. 57 Despite his earlier misgivings with counsel, Senke proceeded to trial with the assistance of Comerford. He therefore cannot also claim that he was denied the right to any counsel at all. 54 See Gonzalez-Lopez, 548 U.S. at 151 ; Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 , 626 (1989). 55 Cf. Faretta, 422 U.S. at 835 . 56 Goldberg, 67 F.3d at 1098 . 57 Compare United States v. Smith, 640 F.3d 580 , 590 (4th Cir. 2011) (quoting Brown v. Craven, 424 F.2d 1166 , 1170 (9th Cir. 1970)), with United States v. Wallace, 753 F.3d 671 , 675 (7th Cir. 2014) (“If communication with the defendant’s counsel broke down as a result of neglect or ineptitude by counsel, the defendant may have a claim of ineffective assistance of counsel, but to prove that he would have to present evidence.”) and United States v. Smoot, 918 F.3d 163 , 169 (D.C. Cir. 2019) (“A defendant challenging the denial of a motion to substitute counsel must show that he was not ‘afforded effective representation’ in order to show that denial of the motion was prejudicial.” (quoting United States v. Graham, 91 F.3d 213 , 221 (D.C. Cir. 1996))). 22  Instead, it is possible to examine the record for identifiable mistakes and assess whether those mistakes affected the outcome of his trial.58 Senke’s claim is therefore more appropriately viewed as one for ineffectiveness, which must be reviewed for prejudice. The wrinkle, though, is that Senke has not attempted to show prejudice in this direct appeal. And the District Court has not yet evaluated the matter. This is why, generally, we do not review claims of ineffectiveness on direct appeal and prefer that they be raised through a habeas corpus proceeding. 59 Accordingly, although the District Court failed to inquire into Senke’s complaints about counsel, we conclude that we cannot grant Senke relief on this claim as it is presently framed. We note that our disposition is without prejudice to Senke’s ability to bring a claim under 28 U.S.C. § 2255 . 60 58 See Gonzalez-Lopez, 548 U.S. at 150 . 59 See United States v. DeRewal, 10 F.3d 100 , 103-04 (3d Cir. 1993). 60 There is some support for our holding from our sister circuits. For example, the First Circuit in United States v. Mota-Santana, 391 F.3d 42 , 45-46 (1st Cir. 2004), rejected a defendant’s contention that there was a conflict of interest requiring reversal where counsel was ordered to respond to his client’s expressions of dissatisfaction. It explained that [w]ere disagreements between attorney and client to be treated in the same manner as [conflict of interest cases]—with resulting possible per se reversal without the necessity of proving prejudice—the nature of appeals in criminal cases would be dramatically altered. The odds are that many an unsuccessful 23  defendant would be found nursing some disagreement with counsel. Id. at 46 . Likewise supporting a showing of prejudice, the Second Circuit observed in United States v. Doe #1, 272 F.3d 116 , 123 (2d Cir. 2001), that “if the reasons proffered [in a substitution motion] are insubstantial and the defendant receives competent representation from counsel, a court’s failure to inquire sufficiently or to inquire at all constitutes harmless error.” Cf. United States v. Morrissey, 461 F.2d 666 , 670 (2d Cir. 1972) (indicating a reluctance to reverse even where defendant raised serious issues with counsel, and ultimately affirming because defendant’s contentions were incorrect or subsequently cured, but noting that “[w]ithout more, [the trial judge’s] failure to inquire, in our view, would constitute error sufficient for reversal of the judgment of conviction.”). Similar to the holding in United States v. Doe #1, the Eighth Circuit in United States v. Jones, 795 F.3d 791 , 797 (8th Cir. 2015), found no abuse of discretion where the magistrate judge denied defendant’s substitution motion without inquiry because the motion contained all of the information the court needed to make a ruling. In so finding, the Eighth Circuit explained that even if a trial court abuses its discretion, “the Sixth Amendment does not require an automatic reversal of the conviction.” Id. at 796 (citing Martel, 565 U.S. at 666 n.4 (reviewing renewed motion for substitution of appointed counsel in federal habeas corpus proceeding, and noting that the Ninth Circuit ordered the wrong remedy even if the district court abused its discretion because “[t]he way to cure that error would have been to remand to the District Court to decide whether substitution was appropriate at the time of [defendant]’s letter.”)). Even the Ninth Circuit, though 24  As to Senke’s post-trial motions for new counsel, we conclude that the District Court did not abuse its discretion by not appointing substitute counsel for sentencing purposes. Senke stated multiple times in his post-trial motions that he was requesting “appealant [sic]” counsel. The District Court reasonably understood this to be a request for appellate counsel. 61 Accordingly, it was not error for it to conclude that any action on its part was moot. B. The Failure to Verify Senke next argues that the District Court failed to comply with Federal Rule of Criminal Procedure 32(i)(1)(A), which provides that “[a]t sentencing, the court: (A) must verify that the defendant and the defendant’s attorney have read and discussed the presentence report and any addendum to the previously supporting automatic reversal, see Craven, 424 F.2d at 1170 , has reinforced that unless there is a constructive denial of counsel, defendant must show prejudice. Schell v. Witek, 218 F.3d 1017 , 1026-28 (9th Cir. 2000) (en banc) (reversing, in part, district court’s denial of defendant’s petition for a writ of habeas corpus and remanding for evidentiary hearing to determine the nature and extent of the conflict between defendant and his attorney and whether that conflict deprived defendant of adequate representation); see United States v. Musa, 220 F.3d 1096 , 1102-03 (9th Cir. 2000) (vacating sentence and remanding for a hearing on the nature of the conflict between defendant and his attorney, and instructing that “[i]f, after a thorough inquiry, the district court finds no breakdown in communication that prevented an adequate defense, it may reinstate the sentence.”). 61 See App. 641; 650. 25 report.” 62 Because this issue was unpreserved, Senke must show plain error.63 Under the plain error standard, we may vacate and remand Senke’s sentence only if we find (1) an error was committed; (2) the error was plain; and (3) the error affected Senke’s substantial rights. 64 In interpreting Rule 32(i)(1)(A), we have declined to create “an absolute requirement that the court personally ask the defendant if he has had the opportunity to read the report and discuss it with counsel.”65 Instead, we have “allowed for a more functional fulfillment of the rule, requiring only that the district court ‘somehow determine that the defendant has had this opportunity,’” “before imposing sentence.” 66 Here, the District Court did not verbally ask Senke if he read and discussed the PSR with his attorneys. The question, then, is whether the District Court could have independently determined that information before sentencing. The Government asserts that “it is clear from the record that both [Comerford] and Senke had an opportunity to read the PSR as both filed specific objections.” 67 That is true. Comerford submitted a sentencing memorandum to the District 62 Fed. R. Crim. P. 32(i)(1)(A). 63 United States v. Olano, 507 U.S. 725 , 734 (1993). 64 Id. at 732-34 . 65 United States v. Mays, 798 F.2d 78 , 80 (3d Cir. 1986). 66 United States v. Stevens, 223 F.3d 239 , 241 (3d Cir. 2000) (quoting Mays, 798 F.2d at 80 ). At the time of Stevens, the Rule 32(i)(1)(A) requirement was codified as Rule 32(c)(3)(A). 67 Gov’t Br. 33. 26 Court, wherein he successfully argued that the PSR improperly enhanced Senke’s offense level. Separately, Senke submitted his own objections, which were addressed in an addendum to the PSR. However, nowhere in the sentencing memorandum does it state that Comerford and Senke discussed the PSR together. Moreover, Comerford submitted his objection to the probation officer before receiving Senke’s objections. At sentencing, Comerford only mentioned the objection made in the sentencing memorandum, and did not reference any of Senke’s. While that may have been because Senke’s objections lacked merit, we cannot conclude that Comerford’s silence indicates he reviewed the objections or discussed them with Senke. Nor does the District Court’s recitation of Senke’s objections and the one made in the sentencing memorandum indicate that it determined Senke had the opportunity to discuss the PSR with counsel. Instead, these facts only confirm that Senke and Comerford read the PSR, but they suggest nothing about a meeting of the minds. Finding plain error, we turn to the issue of Senke’s substantial rights. For substantial rights to have been affected, “the error must have been prejudicial,” in that it “affected the outcome of the district court proceedings.” 68 Senke asserts that if the District Court had asked if he discussed the PSR with counsel, he could have challenged the recommendation of certain special conditions of supervised release, and the recommendation of the $10,000 special assessment fee under the JVTA. These arguments are 68 Olano, 507 U.S. at 734 . 27 unconvincing. Neither of these matters could have affected Senke’s criminal history category, nor the applicable Guidelines range. 69 Moreover, Senke was sentenced to the statutory mandatory minimum; thus “there is no reasonable likelihood that the sentence would have been different,” had the District Court verified a PSR discussion took place.70 Accordingly, Senke’s Rule 32(i)(1)(A) claim must fail. 71 C. The Special Conditions of Supervised Release Next, Senke takes issue with several special conditions of supervised release imposed by the District Court. Because this challenge was unpreserved, Senke must show plain error.72 Each special condition must be reasonably related in a “tangible way,” to the defendant's crimes or something in his history, and it must involve no greater deprivation of liberty than is reasonably necessary to deter future crime, protect the public, or rehabilitate the defendant. 73 “This is not an especially high standard.” 74 But the sentencing court must set forth factual findings to justify the special conditions. 75 If the 69 See Stevens, 223 F.3d at 244 . 70 Id. 71 We stress the importance and relative ease of satisfying a Rule 32(i)(1)(A) verification on the record at sentencing. A very simple colloquy between defendants and district courts would remove all doubt. 72 See United States v. Pruden, 398 F.3d 241 , 248 (3d Cir. 2005). 73 Id. at 248-49 (internal quotation marks and citation omitted). 74 Id. at 249 . 75 United States v. Voelker, 489 F.3d 139 , 144 (3d Cir. 2007). 28 court fails to do so, we may nevertheless affirm “if we can ascertain any viable basis” for the condition. 76 i. Conditions on Computer and Internet Usage Senke argues that the conditions relating to his internet and computer usage are contradictory and more restrictive than necessary. Specifically, he notes that Condition 11 instructs that he “must not possess and/or use computers . . . or other electronic communications or data storage devices or media.”77 Yet Conditions 12-15 require him to obtain permission from his probation officer to use the internet, have monitoring software installed on any computer he uses, and submit to searches of his computers, electronic communications, and data storage devices. 78 The Government concedes that Conditions 11-15 are contradictory and require further clarification by the District Court. We agree. These conditions are indistinguishable from the conditions we struck down in United States v. Holena.79 There, we carefully laid out the considerations a sentencing court must give when balancing public protection against broad, untailored restrictions on a defendant’s liberty. 80 We 76 Id. at 144 (internal quotation marks and citation omitted). 77 App. 13 . 78 App. 13 -14. 79 906 F.3d 288 (3d Cir. 2018). 80 Id. at 291-94 (“To gauge whether an internet or computer restriction is more restrictive than necessary, we consider three factors: the restriction’s length, its coverage, and ‘the 29 noted that “internet bans are ‘draconian,’” particularly in a modern society, where one can hardly complete menial tasks without using a computer or the internet.81 As such, the goal of restricting internet and computer use for defendants like Senke must be to keep them from preying on children. For the reasons explained in Holena, there is no such tailoring here. Conditions 11-15, as currently written, prevent Senke from participating in all sorts of activities, while doing nothing to further public safety. 82 On remand, the District Court must “make findings to support any restrictions it chooses to impose on [Senke’s] internet and computer use.”83 Undoubtedly, there is a strong need to protect the public, and the District Court may still find it appropriate to limit Senke’s internet and computer use. 84 But any limitations must be supported by facts, tailored to Senke’s conduct, and “aim to deter future crimes, protect the public, or rehabilitate [Senke].” 85 ii. Conditions on Contact with Minors defendant’s underlying conduct.’” Id. at 292 (quoting United States v. Heckman, 592 F.3d 400 , 405 (3d Cir. 2010))). 81 Id. at 292 (quoting Heckman, 592 F.3d at 408 ). 82 See id. at 294-95 (noting that a complete ban on computer and internet use raises First Amendment concerns because it restricts an array of activity, without making the public safer). 83 Id. at 291. 84 Id. at 293 (“We recognize that the need to protect the public is strongest in cases like this, when the defendant used the internet to try to molest children.”). 85 Id. 30  Senke also contends that Conditions 6 and 7, regulating his contact with minors, are contradictory. Condition 7 bans Senke from going to or remaining at any place where children “are likely to be.” 86 Yet Condition 6 requires him to obtain permission from the probation officer in order to have direct contact with children. 87 He also argues that Condition 7 is overbroad and unnecessary in light of Condition 6, when the record shows that he was not seeking out children and had no prior sexual interest in children. The Government responds that Condition 6 prohibits “direct” contact with minors without prior permission from a probation officer, while Condition 7 prohibits intentional travel to and/or remaining at places where minors frequent and are likely to congregate. We agree with the Government’s reasoning; Conditions 6 and 7 are not contradictory or overbroad. As the Government explains, Condition 6 requires Senke to receive permission from a probation officer before having direct contact with a minor, regardless of location. Condition 7 prevents him from traveling to places where minors are likely to be, even if he does not intend to have direct contact with any minors. For additional clarity, Condition 7 provides examples on the types of places it encompasses. These conditions are appropriately tailored to Senke’s crime, and are not so contradictory or overbroad that Senke “cannot tell what they forbid.” 88 Senke also complains that Conditions 7 and 8 are 86 App. 13 . 87 Id. 88 Holena, 906 F.3d at 291. 31 unconstitutionally vague. He argues that reasonable people could disagree about whether children are “likely to be” at a variety of places, and there is no guidance as to how he or his probation officer should determine his “primary purpose” for going to a particular location. 89 We previously upheld an arguably stricter condition that restricted any unsupervised contact with minors in a case where the defendant was convicted solely of possessing child pornography. 90 In doing so, we determined that the prohibition against unsupervised contact was not unconstitutionally vague because it did not foreclose accidental contact.91 Similarly, the Second and Fifth Circuits have routinely upheld special conditions that banned defendants from areas where children “frequent” or “congregate.” 92 The same is true of provisions 89 App. 13 . 90 United States v. Loy, 237 F.3d 251 , 254 (3d Cir. 2001). 91 Id. at 269 (“At this point, it is well established that associational conditions do not extend to casual or chance meetings.”). 92 See United States v. Fields, 777 F.3d 799 , 806 (5th Cir. 2015) (upholding a condition that prohibited defendant from going to places “where a minor or minors are known to frequent” and defining those “places” to include schools and playgrounds, but not locations such as grocery stores, places of worship, transportation hubs, and most stores); United States v. MacMillen, 544 F.3d 71 , 73, 75-76 (2d Cir. 2008) (upholding a condition prohibiting the defendant from being in “any” area where children are “likely” to congregate because “[t]he condition challenged here provides [defendant] with adequate notice of what conduct is prohibited—namely, frequenting places where children are likely to congregate.”); United States 32 that include anti-loitering language similar to that of Condition 8. 93 Here, neither Conditions 7 nor 8 bar accidental contact that could occur during ordinary activities in public places. These conditions are tangibly related to Senke’s conviction, where he attempted to entice a minor to meet him in a public place for the purposes of sexual contact. Moreover, their wording is not so vague that “men of common intelligence must necessarily guess at [their] meaning and differ as to [their] application.” 94 iii. Conditions Relating to Testing v. Johnson, 446 F.3d 272 , 280-81 (2d Cir. 2006) (upholding a provision of supervised release that prohibited the defendant from being in “any” area where children are “likely” to congregate); United States v. Paul, 274 F.3d 155 , 165-67 n.13 (5th Cir. 2001) (denying a vagueness challenge to a condition instructing defendant to avoid “places, establishments, and areas frequented by minors,” finding that this direction may be reasonably interpreted and enforced). 93 See United States v. Oliphant, 456 F. App’x 456, 458-59 (5th Cir. 2012) (per curiam) (upholding against vagueness challenge condition stating that defendant “shall not have access to or loiter near school grounds”); United States v. Burroughs, 613 F.3d 233 , 246 n.3 (D.C. Cir. 2010) (upholding against vagueness challenge condition barring defendant from “loiter[ing] in any place where children congregate”). 94 United States v. Maloney, 513 F.3d 350 , 357 (3d Cir. 2008). 33  Senke contends that Conditions 1 and 10 delegate excessive authority to his probation officer by requiring him to take an unlimited number of drug and polygraph tests. District courts may not delegate to probation officers the power to “decide the nature or extent” of supervised release conditions. 95 But we have held that “probation officers must be allowed some discretion in dealing with their charges,” as “courts cannot be expected to map out every detail of a defendant’s supervised release.” 96 In the context of mental health intervention, we determined that if a defendant is required to participate in intervention “only if directed to do so by his probation officer,” then this is an impermissible delegation of judicial authority. 97 Here, the probation officer was instructed by the District Court to subject Senke to drug and polygraph testing. While the probation officer may decide the time, place and frequency of such testing, the testing is not optional. Senke is required to participate in order to comply with the District Court’s conditions. Because the District Court has merely delegated to the probation officer the details with respect to “selection and schedule” of the testing, such delegation is proper. 98 D. The JVTA Special Assessment Fee 95 Pruden, 398 F.3d at 250 . 96 Id. 97 Id. at 250-51 (quoting United States v. Peterson, 248 F.3d 79 , 85 (2d Cir. 2001)). 98 Id. 34  Lastly, Senke argues that the District Court erred by imposing a $10,000 special assessment under the JVTA. 99 He contends that because the JVTA was enacted on May 29, 2015, and he was charged with offenses committed between September 2014 and February 2015, this assessment violates the Ex Post Facto Clause. The Government concedes that the fee imposition was plain error. We agree and will vacate the fee. IV. CONCLUSION For the foregoing reasons, we will vacate the District Court’s judgment as to its imposition of special Conditions 11- 15 regarding Senke’s internet and computer use and a special assessment fee under the JVTA and remand for further proceedings. We will otherwise affirm the District Court’s judgment as to Senke’s conviction and sentence. 99 18 U.S.C. § 3014 . 35 McKEE, concurring in part and dissenting in part. The Majority correctly concludes that “the district court’s failure to address Senke’s complaints regarding his counsel was an abuse of discretion under our precedent in United States v. Diaz.”1 However, my colleagues incorrectly conclude that relief is conditioned upon Senke demonstrating that he was prejudiced by his attorney’s conduct. That conclusion arises from the Majority’s belief that the Sixth Amendment right that has been abridged by the district court’s abuse of discretion was Senke’s right to effective assistance of counsel, rather than his right to substitute counsel.2 The former right is, as my colleagues explain, subject to harmless error analysis and the requirement that a defendant demonstrate prejudice pursuant to Strickland v. Washington.3 However, the court’s failure to inquire into Senke’s request for substitute counsel was an abuse of discretion that is not subject to a harmless error inquiry.4 Rather, precedent from our court and 1 Maj. Op. at 2. 2 Id. 3 466 U.S. 668 , 684–85 (1984). 4 As I explain in Part III, infra, the Supreme Court has recognized an indigent defendant’s right to substitute counsel where it is in the “interests of justice.” See Martel v. Clair, 565 U.S. 648 , 658 (2012). We have interpreted the interests of justice standard to require a showing of “good cause,” i.e. that the defendant had “a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict” with the attorney. United States v. Welty, 674 F.2d 185 , 188 (3d Cir. 1982). Where a defendant shows good cause and a district court fails to substitute counsel, the error is the functional equivalent of the denial of a defendant’s right to counsel of 1 the Supreme Court require that, at the very least, we remand to the district court with instructions to determine if the conflict between Senke and his counsel was irreconcilable.5 If it was, and it clearly may have been, there was structural error that requires a new trial. I. As my colleagues recognize, the district court did not appropriately inquire to determine whether there was “a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict” between Senke and his appointed trial attorney.6 Such an inquiry is vital because “[t]he right to counsel is among those ‘constitutional rights (which are) so basic to a fair trial that their infraction can never be treated as harmless error.’”7 Where the relationship between an indigent choice. See id.; see also United States v. Smith, 640 F.3d 580 , 590 (4th Cir. 2011) (“Once a district court has determined that [a] defendant and his counsel’s communication has so deteriorated as to prevent the mounting of an adequate defense . . . an appointment of substitute counsel is part and parcel of a defendant’s Sixth Amendment right.”). As the Supreme Court has explained, a denial of this right is not subject to a prejudice analysis. See United States v. Gonzalez-Lopez, 548 U.S. 140 , 148 (2006) (“Where the right to be assisted by counsel of one’s choice is wrongly denied . . . it is unnecessary to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation.”). 5 See Martel, 565 U.S. at 666 n.4. 6 United States v. Diaz, 951 F.3d 148 , 154 (3d Cir. 2020). 7 Welty, 674 F.2d at 194 n.6 (citing Chapman v. California, 386 U.S. 18 , 23 & n.8). 2 defendant and the attorney has broken down and the defendant demonstrates good cause for substitution of counsel, new counsel must be appointed.8 Here, there was only a rather perfunctory exchange between the court and counsel which revealed the court’s disinclination to regard Senke’s request with the seriousness the law requires. As the Majority recounts, at a pretrial conference, Senke’s attorney told the court that Senke was not happy with him because Senke wanted him to “fil[e] more motions.”9 My colleagues quite correctly reject the government’s attempt to argue that Senke never requested substitute counsel. As my colleagues explain, Senke was a pro se litigant and his pretrial letter to the court “raised serious issues, including that Comerford was not preparing for trial and had called the evidence ‘to[o] disgusting’ to review with Senke.”10 My colleagues cite to Higgs v. Attorney General,11 where we explained that our “policy of liberally construing pro se submissions is driven by the understanding that . . . [there] is an obligation on the part of the court to make reasonable 8 Id. at 188. See also United States v. Velazquez, 855 F.3d 1021 , 1037 (9th Cir. 2017) (concluding that where “the district court abused its discretion by denying Velazquez’s requests to substitute counsel without conducting an adequate inquiry[,] [t]he result was a constructive denial of counsel that require[d] [the court] to vacate Velazquez’s guilty plea” and remand for further proceedings with new counsel). 9 Maj. Op. at 6 (citing App. 338). 10 Id. at 14 (citing App. 316). 11 655 F.3d 333 (3d Cir. 2011). 3 allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.”12 I agree. I also agree with my colleagues’ conclusion that Senke’s communication to the court “should have indicated to the district court that further inquiry was necessary.”13 Rather than engaging in the required inquiry, the court summarily dismissed any suggestion that Senke’s dissatisfaction with counsel was tantamount to a request for a new attorney. The court responded by telling counsel that Senke didn’t “have much of a chance of losing” Comerford, because he was “the second or third guy on this deal.”14 Ironically, the only real inquiry came not from the court but from the prosecutor who inquired, “[h]e’s not trying to fire you, is he?” Defense counsel replied, “[n]ot that I know of.”15 But, of course, Senke was also complaining about defense counsel’s lack of communication with him.16 12 Maj. Op. at 13, n.75 (quoting Higgs, 655 F.3d at 339). 13 Id. at 14. 14 App. 338 . I disagree with my colleagues’ conclusion that this remark by the court “is irrelevant to our analysis.” Maj. Op. at 15, n.84. Although I realize that my colleagues may have simply been referring to the fact that the court’s statement did not rise to the level of an adequate inquiry, I nevertheless think the comment is relevant as it establishes the absence of such an inquiry and the court’s predisposition to refrain from undertaking that inquiry. 15 App. 339 . 16 Indeed, Senke points to the following exchange at the pretrial conference to argue that Comerford was actively working against Senke’s interests by suggesting that the court issue an 4  I therefore agree with the Majority’s holding that the trial court abused its discretion in not exploring the nature of the conflict between Senke and defense counsel. I must nevertheless dissent from the Majority Opinion because my colleagues hold that Senke is arguing ineffective assistance of counsel and that his claim is therefore subject to a harmless error analysis under Strickland. II. Senke is clearly arguing that the court denied him his right to counsel not because of any alleged ineffective order precluding Comerford from filing any more motions on Senke’s behalf. Comerford stated: I’m just – I just want you to – like, how do you want me to cover the record? Do you want me to file a motion to let – leave of court to file more motions and you deny it? I don’t know how you want me to handle it. *** So I will try to protect the record, and I will file . . . some type of documentation with the court for leave to file additional motions, and then Your Honor can do whatever you need to do with it. App. 338–39. 5 assistance and consequent prejudice, but because an irreconcilable conflict existed between himself and his attorney that resulted in a structural error. His brief simply cannot be fairly read any other way. It clearly cannot be read as asserting the kind of ineffectiveness claim under Strickland that the Majority relies upon to support harmless error review. The relevant arguments in Senke’s brief are structured as follows: I. The district court violated the Sixth Amendment by failing to inquire into or rule on Mr. Senke’s pretrial motion for appointment of new counsel . . . A. When an indigent criminal defendant moves for appointment of new counsel, the court must inquire into the reasons for his dissatisfaction with his attorney . . . B. The district court abused its discretion by failing to inquire into or rule on Mr. Senke’s pretrial motion for appointment of new counsel.17 The relevant legal arguments under Senke’s “Discussion” section of his brief are similarly focused and pertain only to the court’s failure to inquire into Senke’s request for new counsel. Senke’s brief even cites to specific parts of the record where that argument was preserved. It 17 Appellant’s Br. at i–ii. 6 states: “Mr. Senke preserved the issue by filing one pretrial and three posttrial motions for appointment of new counsel.”18 Yet, the Majority concedes: “[t]o be certain, if Senke were asserting that his right to retained counsel of choice was violated, such deprivation would be structural error.”19 But that is exactly what he is asserting insofar as the claim pertains to substitute counsel. Excerpts from his brief clearly establish this. My colleagues state: [I]t is possible to examine the record for identifiable mistakes and assess whether those mistakes affected the outcome of [Senke’s] trial. Senke’s claim is therefore more appropriately viewed as one for ineffectiveness, which must be reviewed for prejudice. The wrinkle, though, is that Senke has not attempted to show prejudice in this direct appeal.20 They incorrectly conclude from Senke’s briefs and from our exchange at oral argument that Senke was asserting a claim of ineffective assistance of counsel under Strickland rather than structural error for failing to substitute counsel.21 A close reading of the transcript of oral argument, however, simply does not support the contention that counsel was there asserting a Strickland claim rather than structural error. A Strickland prejudice analysis was discussed at oral argument, but only in response to questions from the panel. The exchange began when appellate counsel referred to the 18 Id. at 2. 19 Maj. Op. at 19. 20 Id. at 23 (internal citations omitted). 21 Id. 7 letter that Senke sent before trial complaining about trial counsel. Appellate counsel argued, “properly construed, this was clearly a motion for new counsel because he was saying I don’t believe I can get a fair trial with this man as my attorney.”22 After a few exchanges, appellate counsel was basically instructed to argue harmless error: “So either you have to show us that this is structural, or you have to demonstrate prejudice. Your brief has not made any effort to show prejudice. Can you make a prejudice showing here today?”23 Appellate counsel responded that he could “go through various reasons why [he] believe[d] the attorney’s representation at trial wasn’t competent.”24 We then interrupted counsel and asked: “the second prong [of Strickland] is what you’re being asked about now, and . . . [w]hat, if any, prejudice resulted from that dereliction of professionalism?”25 But counsel had not raised the specter of a dereliction of professionalism; we had. Counsel attempted to respond to our inquiry by explaining: “in a series of cases . . . which we cite in our brief, when a court-appointed attorney should be removed for cause – and we’re assuming, for purposes of this question, that he should have been removed for cause – then there is a constructive denial . . . of the right to 22 Transcript of Oral Argument (“Transcript”) at 4. 23 Id. at 8. Senke’s brief made no attempt to establish prejudice precisely because he was not arguing ineffective assistance of counsel under Strickland but a structural error that resulted from the court’s failure to appoint substitute counsel. Given that, it would have been self-defeating to then argue prejudice in his brief, as we asked him to at oral argument. 24 Id. at 8. 25 Id. at 9. 8 counsel.”26 After a brief exchange, counsel continued: “No court has ever required [a showing of prejudice] . . . in this situation. If an attorney should have been removed for cause, then it’s considered prejudice, per se.”27 We then pressed counsel further: [to] clarify again. There are two ways you can win, one of them is structural or presumption. You’re pushing that now, let’s get to that in a minute. I want to give you an opportunity, if there is anything you can cite to show prejudice, this is your chance. If you don’t answer this question, then we have to take the whole thing on the structural approach.28 After another brief exchange, counsel sought clarification: “When you say ‘establish prejudice,’ do you mean that there were things that this attorney did that was [sic] prejudicial to my client?”29 We responded by again referring to Strickland and asking “is there anything you can cite in this record that would satisfy [the prejudice requirement of Strickland]?”30 Counsel answered, “Absolutely, Your Honor,” and he then went on to argue points in the record that he believed would satisfy the prejudice prong of Strickland just as we had invited him to.31 26 Id. 27 Id. 28 Id. at 9–10 (emphasis added). 29 Id. at 10. 30 Id. 31 Id. at 10, 11. 9  Arguments raised on appeal are defined by, and limited to, the arguments outlined in a litigant’s brief. They are not defined by issues that were not briefed and raised only at oral argument. That axiom should apply with particular force where, as here, counsel’s statements at argument were only an attempt to respond to questions or direction from the court. In fact, we have declined to decide issues raised by the panel during argument but not presented in the party’s appellate brief.32 III. In Martel v. Clair, the Supreme Court recognized a statutory right to substitute counsel where an indigent defendant shows that substitution is in the “interests of justice.”33 The Court there cited our opinion in Welty in discussing when the interests of justice required substitution of counsel.34 A reviewing court can determine whether substitution is in the interests of justice by looking at “the 32 See, e.g., United Artists Theatre Cir., Inc. v. Twp. of Warrington, Pa., 316 F.3d 392 , 397 (3d Cir. 2003) (noting that a prior “panel did not decide [an issue] . . . because the issue was raised by the panel on its own at argument and was not briefed by the parties . . . .”); United States v. Lennon, 372 F.3d 535 , 541 n.10 (3d Cir. 2004) (“For the same reason that we will not consider an argument minted at the reply brief stage, we will not consider an argument made by counsel for the first time at oral argument.”). 33 565 U.S. at 658 (“‘[T]he interests of justice’ . . . standard derives from 18 U.S.C. § 3006A, which governs the appointment and substitution of counsel in federal non-capital litigation.”). 34 Id. at 663. 10 timeliness of the motion; the adequacy of the district court’s inquiry into the defendant’s complaint; and the asserted cause for that complaint, including the extent of the conflict or breakdown in communication between lawyer and client (and the client’s own responsibility, if any, for that conflict).”35 We have interpreted this standard to require a showing of “good cause;” i.e. where the defendant demonstrates that there was a “conflict of interest, a complete breakdown in communication, or an irreconcilable conflict with [the] attorney,” substitution follows.36 In Gonzalez-Lopez, the Supreme Court concluded that a district court’s erroneous denial of a defendant’s motion to substitute counsel was “structural error” and required relief without any demonstration of prejudice.37 Although the defendant in Gonzalez-Lopez was able to pay for his attorney and therefore had a right to counsel of his choice, the Court’s conclusion that where substitute counsel is erroneously denied, the defendant has suffered structural error, applies with equal force here. A defendant who has been denied this right need not show prejudice to get relief; the defendant merely needs to show that good cause existed to substitute counsel and that the district court failed to do so.38 35 Id. (citing United States v. Prime, 431 F.3d 1147 , 1154 (9th Cir. 2005); United States v. Doe, 272 F.3d 116 , 122–123 (2nd Cir. 2001); Welty, 674 F.2d at 188 ). 36 Welty, 674 F.2d at 188 ; accord Diaz, 951 F.3d at 154. 37 Gonzalez-Lopez, 548 U.S. at 150 . 38 See, e.g., Welty, 674 F.2d at 188 ; Velazquez, 855 F.3d at 1034 (“A defendant need not show prejudice when the breakdown of a relationship between attorney and client from 11  In concluding otherwise, the Majority attempts to buoy its view of the essence of Senke’s constitutional claim by suggesting that he has confused his claim of the denial of counsel of choice with the Sixth Amendment’s guarantee of effective assistance of counsel. We are told that the latter requires competent representation and thus lends itself to an inquiry into prejudice whereas the former protects the structural integrity of the trial. However, in Gonzalez-Lopez, the Supreme Court rejected the same kind of hair-splitting that my colleagues engage in here. There, the Court rejected the state’s argument “that the Sixth Amendment violation is not ‘complete’ unless the defendant can show that substitute counsel was ineffective within the meaning of Strickland v. Washington . . . i.e., that substitute counsel’s performance was deficient and the defendant was prejudiced by it.”39 In explaining why Strickland did not apply there, the Court stated: the Government’s argument in effect reads the Sixth Amendment as a more detailed version of the Due Process Clause—and then proceeds to give no effect to the details. It is true enough that the purpose of the rights set forth in that Amendment is to ensure a fair trial; but it does not follow that the rights can be disregarded so long as the trial is, on the whole, fair.40 irreconcilable differences results in the complete denial of counsel.”). 39 Gonzalez-Lopez, 548 U.S. at 144 (internal citation omitted). 40 Id. at 145 . 12  Of course, as mentioned, Senke’s counsel was appointed to him and therefore he was differently situated than the defendant in Gonzalez-Lopez, who could afford his own counsel, but the Court’s fundamental teaching, that an erroneous deprivation of counsel is structural error, is no less vibrant for a defendant with appointed counsel.41 The Court in Gonzalez-Lopez was concerned with the “erroneous” “deprivation of counsel,” concluding that such deprivation was structural error.42 So too in a case where an indigent defendant shows cause – that there was a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict 41 As the Majority notes, the Court in Gonzalez-Lopez stated that “the right to counsel of choice does not extend to defendants who require counsel to be appointed for them,” id. at 151 , but that statement, which was dicta, did nothing to alter the structural error holding of the case. In fact, in making that statement, the Court cited to Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 , 626 (1989), where it concluded that “[a] defendant has no Sixth Amendment right to spend another person’s money for services rendered by an attorney.” Id. (emphasis added). When considering the case of an indigent defendant, the Gonzalez-Lopez Court’s statement is best read in that context, as a statement on the practical limitations indigent defendants face when requesting substitute counsel – because the defendant cannot afford substitute counsel, the defendant will have to do with appointed counsel. I do not, however, read the Court’s statement in Gonzalez-Lopez as doing what the Majority suggests; namely, precluding an indigent defendant from raising a claim of structural error where the defendant was erroneously denied substitute counsel. 42 Gonzalez-Lopez, 548 U.S. at 146 . 13 with the attorney – and is erroneously denied substitute counsel. That defendant has similarly been “depriv[ed] of counsel . . . erroneous[ly]” and the error in the case is structural. That indigent defendant, too, need not demonstrate prejudice to get relief. The Majority claims that “Senke’s claim does not fall into one of the established categories of structural error.”43 But as we have consistently held, if Senke can show good cause then he is entitled to substitution of counsel.44 The erroneous deprivation of such substitute counsel is akin to the denial of a defendant’s Sixth Amendment right to choice of counsel, which, unequivocally, is structural error. The Court’s reasoning in Gonzalez-Lopez is therefore equally applicable here: “[T]he erroneous denial of counsel bears directly on the framework within which the trial proceeds. . . . It is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings.”45 Accordingly, where “the deprivation of counsel [i]s erroneous[,] [n]o additional showing of prejudice is required to make the violation ‘complete.’”46 This is true whether a defendant can pay for an attorney or not. “Harmless- error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe.”47 An indigent defendant is constitutionally entitled to go to trial with 43 Maj. Op. at 21. 44 See Welty, 674 F.2d at 188 . 45 Id. at 150 (internal citations and quotations omitted). 46 Id. at 146. 47 Id. at 150. 14 an attorney with whom the defendant does not have an irreconcilable conflict.48 We have also previously concluded that when a defendant has been deprived of the right to substitute counsel, the error requires reversal without a prejudice inquiry. In Welty, we reversed and remanded where the trial court refused to appoint new counsel and where we were not convinced that the court adequately investigated the defendant’s decision to proceed pro se.49 And in McMahon v. Fulcomer,50 we also reversed and remanded where the district court granted defense counsel’s motion to withdraw and denied defendant’s motion for a continuance, which would have allowed him time to procure substitute counsel.51 We did not engage in a prejudice analysis following the district court’s erroneous decision to deny substitute counsel in either case. The Majority concludes that because the defendants in such cases were forced to choose between counsel with whom they were dissatisfied and with self-representation, the cases are inapposite.52 But that distinction is without a difference. Rather, it is merely a reflection of the reality that these cases 48 See United States v. Smith, 640 F.3d 580 , 590 (4th Cir. 2011) (“[T]o compel one charged with grievous crime to undergo trial with the assistance of an attorney with whom he has become embroiled in irreconcilable conflict is to deprive him of the effective assistance of any counsel whatsoever.”) (citations omitted). 49 674 F.2d at 194 . 50 821 F.2d 934 (3d Cir. 1987). 51 Id. at 944 . 52 Maj. Op. at 17–18. 15 often arise in that posture. The fact that the defendants were forced to choose between self-representation and counsel that they had lost faith in, however, does not negate the proposition that substitute counsel must be provided when there is an adequate showing of good cause. My colleagues conclude that these cases are not helpful because our primary concern there was different from our concern here. They claim that our concern in prior cases was whether the district court adequately ensured that the defendants’ decisions to proceed pro se were knowing and voluntary.53 The Majority notes that here, “despite his . . . misgivings,” Senke did not proceed pro se, but rather decided to go to trial with Comerford.54 While it is true that we were concerned with the district courts’ failures to appropriately inquire into defendants’ decisions to proceed pro se in Welty and McMahon, it does not follow that we are therefore at liberty to ignore the clear conclusion from those cases. Those cases stand for the proposition that an inquiry into prejudice is not appropriate in circumstances analogous to the circumstances here. Moreover, in disregarding the teaching of our prior cases, my colleagues ignore the fact that an appropriate inquiry here would almost certainly have forced Senke to either waive his right to counsel and proceed pro se or proceed to trial represented by Comerford. Of course, the constitutional viability of the latter option turns on the extent to which the relationship between Senke and Comerford had deteriorated and whether any conflict was irreconcilable. Given Senke’s 53 See Maj. Op. at 17 & n.38. 54 Id. at 22. 16 representation that Comerford found the discovery here “to[o] disgusting” to review, that is not at all unlikely. However, Senke’s case never advanced to the point where the nature of the conflict with defense counsel was explored. That is the primary distinction between this case and our prior cases. However, it is a distinction without a difference given the district court’s failure to ascertain anything further about the conflict Senke had with Comerford. Accordingly, the remedy for that abuse of discretion should be a remand to allow the district court to determine if the conflict was irreconcilable. If it was, a new trial with substitute counsel is required. Other circuit courts of appeals agree that a showing of prejudice is not required for relief where a district court erroneously fails to substitute counsel. For example, the Court of Appeals for the Ninth Circuit recently concluded: “[w]here a criminal defendant has, with legitimate reason, completely lost trust in his attorney, and the trial court refuses to remove the attorney, the defendant is constructively denied counsel.”55 Under these circumstances, “[a] defendant need not show prejudice.”56 Similarly, in United States v. Jennings,57 the Court of Appeals for the Sixth Circuit concluded that, based on the appellate record, it was “unable to determine whether the district court discharged its responsibility of ascertaining the reasons underlying the defendant’s dissatisfaction with [appointed] counsel.”58 Accordingly, the court remanded “for the purpose of allowing the district court to personally inquire from each defendant his reasons for dissatisfaction with 55 Velazquez, 855 F.3d at 1033–34. 56 Id. at 1034. 57 945 F.2d 129 (6th Cir. 1991). 58 Id. at 132 . 17 counsel.”59 The panel instructed the district court that if, on remand, it found “good cause” to substitute counsel, “each [defendant] would be entitled to new appointed counsel for re- trial,” without a showing that the appointed attorneys who represented the defendants at trial were ineffective.60 We should do the same here. IV. We have consistently held that “the district court must engage in at least some inquiry as to the reason for the defendant’s dissatisfaction with his existing attorney.”61 “[E]ven when the trial judge strongly suspects that the defendant’s requests are disingenuous and designed solely to manipulate the judicial process and to delay the trial” or where the record reveals “overwhelming evidence of [the defendant’s] guilt,” a court cannot give short shrift to this inquiry.62 59 Id. 60 Id. Additionally, in United States v. Collado-Rivera, the Sixth Circuit concluded that the “district court abused its discretion by summarily denying [a] post-trial motion for new counsel.” 759 F. App’x 455, 467 (6th Cir. 2019). It held “[t]he appropriate remedy is to remand for a hearing on the issue whether, at the time of sentencing, there was good cause for substitution of counsel.” Id. On remand, “[i]f the district court determine[d] that [the defendant] had good cause for substitution of counsel,” the court held that the defendant “should be re-sentenced” with new counsel. Id. 61 Diaz, 951 F.3d at 154. 62 Welty, 674 F.2d at 186, 187 . 18  We reaffirmed in Diaz that the inquiry is designed to determine whether good cause, i.e. “a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict,”63 exists between a defendant and his or her attorney. If it does, the defendant is entitled to new counsel. And where a court fails to perform such an inquiry, remand is required.64 In Martel, the Supreme Court determined that where a district court abuses its discretion in failing to inquire into a defendant’s complaints about counsel, (as my colleagues realize the district court did here), the appropriate remedy is to remand to the district court for a hearing to determine whether substitution was warranted. The Court put it plainly: If a district court “abuse[s] its discretion in denying [a defendant’s] substitution motion without inquiry[,] [t]he way to cure that error [is] to remand to the district court to decide whether substitution was appropriate at the time of [the defendant’s] letter” requesting substitution.65 The focus of the inquiry is not on finding any deficiencies in the lawyer’s performance after the defendant files the substitution motion, but rather on the nature of the defendant’s relationship with the appointed lawyer when the substitution motion is filed.66 In describing 63 Diaz, 951 F.3d at 154. 64 See Martel, 565 U.S. at 666 n.4. 65 Id. 66 The Martel Court can be read to have rejected the functional equivalent of a prejudice standard, too. The government contended that remand was inappropriate because “even if the attorney-client relationship ha[d] broken down,” Clair’s attorney “ha[d] the required qualifications and [wa]s ‘act[ing] as an advocate.’” Id. at 661 . But the Court rejected that argument. It concluded that the appropriateness of substitution 19 the appropriate standard, the Court cited to our decision in Welty, and to Second and Ninth Circuits’ decisions in United States v. Prime,67 United States v. Doe,68 none of which discussed – much less required – a showing of prejudice on the substitution issue.69 In Prime, a panel of the Court of Appeals for the Ninth Circuit described the appropriate three-part inquiry to review a district court’s denial of a motion to substitute counsel: “1) the timeliness of the motion; 2) the adequacy of the district court’s inquiry into the defendant’s complaint; and 3) whether the asserted conflict was so great as to result in a complete breakdown in communication and a consequent inability to present a defense.”70 Similarly, in Doe, a panel of the Court of Appeals for the Second Circuit described that the appropriate inquiry focused on: “(1) whether [the] defendant made a timely motion requesting new counsel; (2) whether the trial court did not turn on whether the attorney had been “acting as an advocate.” Id. at 663 . 67 431 F.3d 1147 , 1154 (9th Cir. 2005). 68 272 F.3d 116 , 122–123 (2d Cir. 2001). 69 Martel, 565 U.S. at 663 . Of course, we recognize that Martel was a capital case and the question addressed by the Court was whether, when evaluating motions to substitute counsel in capital cases, the same “interests of justice” standard applied there as it did in non-capital cases. Id. at 658 . But because the Court concluded that the same standard applies to both capital and non-capital cases alike, id., the analysis in Martel – including the Court’s directive to remand to the district court for a hearing if the court abuses its discretion in denying substitution without an appropriate inquiry – applies with full force here. 70 431 F.3d at 1155. 20 adequately inquired into the matter; and (3) whether the conflict between the defendant and his attorney was so great that it resulted in a total lack of communication preventing an adequate defense.”71 Whether the defendant was prejudiced by counsel’s performance is simply not part of the inquiry. Additionally, in Diaz, we considered whether the district court abused its discretion in failing to inquire into Diaz’s dissatisfaction with counsel. We never inquired into whether counsel’s actions after Diaz requested new counsel prejudiced Diaz. Rather, as in Martel, the inquiry was focused on Diaz’s relationship with his attorney when he filed the substitution motion. We only concluded that the court did not abuse its discretion because “the District Court had good reason to believe [Diaz’s attorney] was communicating with Diaz such that Diaz’s request was withdrawn or moot.”72 If, as the Majority concludes, a showing of prejudice were required, we would not have looked at Diaz’s relationship with his counsel, but rather evaluated Kalinowski’s performance as Diaz’s attorney. But we did not do so there, and we should not do so here. In sum, because the district court abused its discretion when it failed to appropriately inquire into Senke’s dissatisfaction with counsel and request for substitute counsel, we must remand to the district court for a hearing to determine whether good cause existed to substitute counsel. If the district court determines that good cause existed, then it must vacate Senke’s conviction and retry Senke with new appointed counsel. 71 272 F.3d at 122 (internal quotations omitted). 72 Diaz, 951 F.3d at 155. 21  V. Finally, although I completely agree with, and join, Section III.C. of the Majority Opinion explaining why certain conditions of supervised release are overbroad, I want to take this opportunity to address the fact that some courts in our Circuit continue to impose what can only be described as knee- jerk and overly broad restrictions on internet and computer use, despite our repeated admonitions to the contrary. I suspect that the persistence of such sentencing practices, despite our consistent reversals and remands reflects a lack of understanding of technology rather than stubborn resistance to our decisions. But whatever the reason, the kind of irrational, draconian, and unconstitutional restrictions on internet and computer usage that are demonstrated by some of the terms of Senke’s supervised release must stop. We all recognize that some defendants are capable of using computers and the internet to victimize others and that reasonable restrictions must therefore be placed on such use in appropriate cases. However, as we have so often tried to explain, such restrictions must be applied in a thoughtful and tailored way based upon the facts of a given case and care must be taken not to allow the justification for imposing some restrictions to morph into an excuse for imposing broad restrictions that impose on First Amendment liberties or restrain a defendant’s freedom more than necessary. As the Majority correctly recognizes, computer and “internet bans are draconian, particularly in a modern society, where one can hardly complete menial tasks without using a 22 computer or the internet.”73 Thus, “blanket internet restrictions will rarely be tailored enough to pass constitutional muster.”74 The district court’s ban on possessing and using “computers . . . [and] other electronic communications” devices would cover all computers, cell phones, and a broad range of other devices, from “gaming devices to fitness trackers to smart watches.”75 On its face, this restriction is too broad. It would “prevent [Senke] from doing everyday tasks, like preparing a résumé or calling a friend for a ride,” along with commonplace “tasks that have migrated to the internet, like shopping, or searching for jobs or housing,” even though “none of these activities puts the public at risk.”76 Almost 15 years ago, in Voelker, we noted that all new cars then being produced contained at least one computer and that the order banning access to computers or the internet would have prevented the defendant from driving a car, using an ATM or a telephone, to name but a few ramifications of an untailored ban on computers and the internet.77 For better or worse, the presence of computers and the internet in everyday life has grown exponentially since then. A subsequent online article about auto shows was titled: “How cars have become 73 Maj. Op at 30 (internal quotations omitted). See also United States v. Voelker, 489 F.3d 139 , 145 (3d Cir. 2007) (“The ubiquitous presence of the [I]nternet and the all-encompassing nature of the information it contains are too obvious to require extensive citation or discussion.”). 74 Holena, 906 F.3d at 295. 75 Id. at 294. 76 Id. at 292, 294. 77 489 F.3d at 148 n.8. 23 rolling computers.”78 And that was four years ago. The caption of a relatively more recent article in the Wall Street Journal speaks volumes about the ubiquitous nature of computers: “Your Smartphone Is the Best Computer You Own.”79 And yet, the kind of reflexive restrictions that were imposed on internet and computer usage here continues. Although we have said it so often that it should not need repeating, I separately emphasize what my colleagues clearly and unambiguously hold in the Majority Opinion. Such bans must be tailored and focused on the particular evil that a court is concerned with. In addition, they must not be worded so broadly as to give “the probation office no guidance on the sorts of internet use that it should approve.”80 For courts that continue to insist on ignoring the law of this Circuit and reflexively imposing unconstitutional and irrational restrictions that sweep too broadly and infringe First Amendment liberties, I can only respond by quoting our dearly 78 Steve Mertl, How cars have become rolling computers, The Globe and Mail (Mar. 5, 2016), https://www.theglobeandmail.com/globe-drive/how-cars- have-become-rolling- computers/article29008154/#:~:text=The%20average%20car %20today%20can,networked%20but%20sometimes%20oper ating%20independently. 79 David Pierce, Your Smartphone Is the Best Computer You Own, The Wall St. Journal (May 23, 2018), https://www.wsj.com/articles/your-phone-is-the-best- computer-you-ownso-use-it-more-1527084001. 80 Holena, 906 F.3d at 293. 24 departed colleague, Judge Joseph Weis. In Gregory v. Chehi,81 in explaining the origins of the doctrine of res judicata, Judge Weis recounted a statement by a confederate general who, after twice refusing a soldier’s request for a furlough, scribbled the following on the back of the soldier’s third request: “I told you twicest Godamnit know.”82 I can only hope that this is the last time we will have to explain (yet again) the practical and constitutional demand that courts carefully and individually tailor restrictions on internet and computer use to prevent an associated evil. However, if history is any teacher, Judge Weis’ ever so appropriate exhortation will probably be called to mind at some point yet again. 81 843 F.2d 111 (3d Cir. 1988). 82 Id. at 112 . 25

2021-01-26 18:00:22.846489+00

https://www2.ca3.uscourts.gov/opinarch/201567np.pdf

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________ No. 20-1567 __________ THOMAS BELLES, Appellant v. WILKES-BARRE AREA SCHOOL DISTRICT; FRANK CASTANO; SEAN FLYNN __________ On Appeal from the United States District Court for the Middle District of Pennsylvania (District Court Civil No. 3-17-cv-01016) District Judge: Honorable Karoline Mehalchick Argued: October 22, 2020 BEFORE: CHAGARES, GREENAWAY, JR., and NYGAARD, Circuit Judges (Filed: January 26, 2021) Kimberly D. Borland (ARGUED) Borland & Borland 69 Public Square, 11th Floor Wilkes-Barre, PA 18701 Counsel for Appellant John E. Freund, III Brian J. Taylor (ARGUED) King Spry Herman Freund & Faul One West Broad Street, Suite 700 Bethlehem, PA 18018 Counsel for Appellees __________ OPINION* __________ NYGAARD, Circuit Judge. Thomas Belles sued Wilkes Barre Area School District, Frank Castano and Sean Flynn claiming that they violated the Americans with Disabilities Act ( 42 U.S.C. §§ 12101 –12213) and the Pennsylvania Human Relations Act ( 43 Pa. Cons. Stat. §§ 951 - 963) during the time that he served as head varsity wrestling coach at Coughlin High School.1 Belles appeals only the judgment granted in favor of the School District and Castano, who is the District’s Director of Human Resources.2 We will affirm the District Court’s order.3 Belles is quadriplegic. He has taught in the School District since 1993 and had been head coach of the junior high school wrestling team from 2008. The School District hired him as the high school’s head varsity wrestling coach on May 12, 2014. Belles * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 The analysis of Belles’s ADA claims here applies equally to his PHRA claims. See Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266 , 274 (3d Cir. 2012). 2 Belles voluntarily withdrew all claims against Sean Flynn in the District Court. 3 We have jurisdiction under 28 U.S.C. § 1291 . Our review is plenary. 2 resigned from the position on August 28, 2014. Within that span of time, he claims the School District and Castano discriminated against him by failing to accommodate his ability to practice his team; retaliating for his accommodation request when the School District hired an associate head coach; creating a hostile work environment; and constructively discharging him. To establish an ADA failure-to-accommodate claim, Belles had to show he is disabled, his employer was aware of it, he requested accommodation, a reasonable accommodation was possible, and the employer did not make a good faith effort to respond. See Capps v. Mondelez Global, LLC, 847 F.3d 144 , 157 (3d Cir. 2017). The first three elements are not at issue here. The accommodation issue arose because the wrestling team’s practice room is in the high school basement. Belles suggested that the School District could install a wheelchair lift, or it could move practices to an accessible space like the junior high school wrestling practice area, the high school gym or the high school cafeteria. Belles stressed to the District Court that over one-hundred days passed before the School District made any effort to respond. He also averred that the School District expressed opposition to accommodating him. However, he quit just hours before he was to attend a meeting with the School District and a wheelchair lift contractor. The District Court ruled that Belles’s failure to accommodate claim was “bereft of any evidentiary support” and that permitting this claim to go to trial would “sanction jury speculation.” Belles v. Wilkes-Barre Area School District, 2020 WL 1028338 , at *8 (M.D. Pa. 2020). 3  Belles argues that the District Court misapplied the standard of review by interpreting the record in favor of Appellees. He also contends it either failed to discuss or downplayed evidence that the School District acted in bad faith. Superintendent Bernard Prevuznak angrily declared, Belles avers, that practices would remain in the basement room, and that the Board did not want to pay for a wheelchair lift. Prevuznak disputes this. But, regardless, the rest of Belles’s bad faith argument rests purely on speculation (e.g., his claim that Castano asked him to quit to avoid accommodating him; or his assertion that delay made it difficult to install a lift before wrestling season), and other information that is not material to the claim (e.g., his focus on the negative comments and acts by Robert Hawkins, a parent and volunteer assistant coach). Therefore, even when interpreted in Belles’s favor, the remarks by Prevuznak are not sufficient to reasonably infer bad faith. Accordingly, they do not raise a question of material fact. Moreover, as the District Court noted, Belles’s resignation foreclosed the process with the School District to find an accommodation, and the brevity of his tenure limited the amount of interaction that was reasonably possible between him and the School District. Both undercut his already inadequate claim that its interactive process with him was made in bad faith. The District Court did not err. Belles next claims the School District generally discriminated against him,4 and that he was demoted in retaliation for requesting accommodation when, on August 11, 4 Belles refers to his failure-to-accommodate and constructive discharge claims in this context. 4 2014, the Board hired David Parsnik to be an associate coach.5 He adds that it appointed two assistant coaches he did not recommend. To show a prima facie case of ADA discrimination or retaliation, Belles must provide evidence of “(1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee’s protected activity; and (3) a causal connection between the employee’s protected activity and the employer’s adverse action.” Krouse v. American Sterilizer Co., 126 F.3d 494 , 500 (3d Cir. 1997). The record does not provide any evidence of an adverse employment action.6 There is no evidence that the Board’s staffing decisions on August 11 constitute an adverse employment action. Belles calls it a demotion, but the record is devoid of any evidence setting out Parsnik’s responsibilities. This makes it impossible to assess the impact of the appointment, if any, on Belles’s head coach position. The label given to the position, whether “associate” or “co-head coach” (as Belles states) means nothing without more. Similarly, Belles fails to provide any evidence that sheds light on the significance of the Board appointing assistant coaches that he did not recommend. No one disputes that the School Board was vested with the authority to staff those positions. Moreover, Belles resigned before any of the new appointees engaged with him in a coaching capacity. We do not have any facts to assess his claim of being demoted. 5 We are addressing the ADA and PHRA retaliation claims with the same analysis here. Compare 42 U.S.C. § 12203 (a) and 43 Pa. Cons. Stat. § 955 (d). 6 We assess the failure-to-accommodate and constructive discharge claims more specifically in other portions of this opinion. 5 Lacking evidence of an adverse employment action, Belles has not established a prima facie case of discrimination or retaliation. Summary judgment was proper. Next, Belles claims that he was subjected to a hostile work environment. He points to all of the conduct and events already referenced above plus some additional emails from Castano and Hawkins, and other communications that he characterizes as hostile. After our review, we conclude that Belles does not provide evidence that the School District engaged in any conduct that would rise to the level of harassment. Belles says that Castano asked him to quit, but there is no evidence that he did. The exchange between Castano and Belles the day after the Board hired him centered on some negative responses to his appointment as head coach. And both agree they discussed alternative job responsibilities Belles could possibly take. But even crediting Belles’s view of the conversation, Belles’s other allegations of harassment do not create a material issue because the alleged harassment was neither severe nor pervasive. As for the messages Castano sent to Belles during the summer of 2014, he did not demand that Belles resign. Belles is the one who expressed his intent to resign. Belles resorts, in briefing, to mere speculation about Castano’s motive and what he meant in each of these communications.7 Similarly, the remarks by Prevuznak (referenced and discussed above) do not create a genuine dispute on the claim of harassment. As to the actions of the Board on August 11, 7 In the same way, as to Belles’s averments about statements made by the Junior High School principal, there is no evidence the principal asked Belles to resign. But even if the principal asked Belles to resign, Belles’s own testimony makes clear that the principal only asked for his resignation letter after Belles informed Castano that he wanted to resign. Moreover, none of this rises to the level of severe and pervasive. 6 our assessment above also applies here. We do not have enough information to understand its relevance to any of Belles’s claims. Finally, Belles refers to efforts by Hawkins to organize parents and students to oppose his appointment. Although Hawkins was appointed as a volunteer coach, this appointment and the actions by Hawkins that Belles avers do not rise to the level of harassment required because a “hostile” environment requires more than mere disagreements or even the “sporadic use of abusive language,” Faragher v. City of Boca Raton, 524 U.S. 775 , 788 (1998)(citation omitted), and any suggestion that Hawkins would have harassed Belles throughout the wrestling season is entirely speculative. He also points to some negative comments made throughout his brief tenure by students and parents. But even if, arguendo, these communications rose to the level of severe and pervasive, none of them are attributable to the School District. The District Court did not err. Finally, Belles alleges he was constructively discharged. We consider a number of factors, including whether the employer threatened to fire, demote or reduce the compensation of the employee, and whether it transferred him to a less desirable position, had his job responsibilities altered, or gave him unsatisfactory evaluations. Colwell v. Rite Aid Corp., 602 F.3d 495 , 503 (3d Cir. 2010). Although, as discussed above, Belles alleges a number of these—termination, demotion, and altering responsibilities—the analysis is objective. Since we have not found any such evidence to support any of the 7 assertions relevant to this claim, we conclude that the District Court did not err by granting summary judgment in favor of Appellees.8 For all of these reasons we will affirm the order of the District Court. 8 Lacking any ADA or PHRA claims to place before a jury, Belles’ claim that Castano aided and abetted the School District’s violations also fails. 8

2021-01-26 18:00:23.79762+00

https://www2.ca3.uscourts.gov/opinarch/193496np.pdf

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 19-3496 _____________ ROMAN (RON) TYMIAK, Appellant v. COMMISSIONER SOCIAL SECURITY ______________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civ. Action No. 2-18-cv-01559) District Judge: Honorable Marilyn J. Horan ______________ Submitted Under Third Circuit L.A.R. 34.1(a) July 1, 2020 ______________ Before: GREENAWAY, JR., SHWARTZ, and RENDELL, Circuit Judges. (Opinion Filed: January 26, 2021) ______________ OPINION * ______________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. GREENAWAY, JR., Circuit Judge. Roman Tymiak seeks review of the District Court’s order dismissing, pursuant to Fed. R. Civ. P. 12(b)(6), his complaint in which he sought review of the calculation of his Social Security retirement benefits. In addition, the District Court found that none of the other claims he raised fell within its jurisdiction. Before us, he argues that his Social Security Administration (“SSA”) Earnings Record (“ER”) is incorrect and that jurisdiction exists over his other claims. For the reasons stated below, we will affirm the order of the District Court. 1 I. BACKGROUND A. Administrative Proceedings Tymiak filed for retirement insurance benefits on April 21, 2015. Dissatisfied with the award of benefits he received on April 27, 2015, he sought reconsideration on June 24, 2015. The initial determination was upheld. He then sought review before an Administrative Law Judge (“ALJ”). Before the ALJ, Tymiak argued that his ER did not accurately reflect his income for the period of 1991 through 1995. He identified three sources of alleged earnings that he argued should have been included in his ER: (1) royalties from a copyright; 2 (2) funds 1 While we are affirming the District Court, we do so on different bases than those set forth by the District Court. “Generally, we may affirm on any ground supported by the record[.]” Laurel Gardens, LLC v. McKenna, 948 F.3d 105 , 116 (3d Cir. 2020). 2 In 1989, Tymiak registered a copyright for a computer program and database he developed, titled “Credit Union Member Accounting Automated Database.” According to Tymiak, several credit unions have used the database. He claimed that between 1986 and 1999 he received $180,000 from various credit unions for their use of his copyright. 2 from the settlement of Tymiak v. Public Service Plaza Federal Credit Union, No. 2:90- cv-1202-AMW (D.N.J.); and (3) income from a trust established by his father. 3 Tymiak argued that, based on these three sources of income, he was an employee, as defined in 42 U.S.C. § 410 (j)(2) and (j)(3)(C). 4 In support of his claim, Tymiak submitted tax returns from 1991 through 1995. 5 The ALJ noted that Tymiak held himself out in these tax returns as “a consultant for computers and software and doing business as North Hills Computer Associates.” (App. 62a.) Tymiak reported no wages or self- employment income on these returns. Tymiak also submitted invoices sent by North Hills Computer Associates to various credit unions, including the Ukrainian Selfreliance of Western Pennsylvania Federal Credit Union (“Ukrainian Credit Union”). The ALJ found that Tymiak provided no proof as to wages in the years he claims 3 Before the ALJ, Tymiak also attempted to argue that he was entitled to widower’s benefits based on his alleged common law marriage to Lillian Wikman-Morse, but the ALJ noted that this issue was not before her. Tymiak had previously notified the SSA that “[h]e could not provide proff [sic] of common law marriage. He did not wish to pursue this option.” (S. App. 284.) 4 Subsection (j)(2) defines an employee as “any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee,” while subsection (j)(3)(C) defines an employee as “any individual (other than an individual who is an employee under paragraph (1) or (2) of this subsection) who performs services for remuneration for any person . . . as a home worker performing work, according to specifications furnished by the person for whom the services are performed, on materials or goods furnished by such person which are required to be returned to such person or a person designated by him.” 42 U.S.C. § 410 (j)(2), (j)(3)(C). 5 For 1992, Tymiak only submitted a Schedule C form. In addition, Tymiak submitted tax returns for 1987, 1988, and 1996-1998 before the District Court. 3 he was an employee. In fact, according to the ALJ, the tax returns submitted by Tymiak “show[ ] he held himself out as a self-employed consultant and that he had business losses [for tax years 1991 through 1995] and reported no wages.” (App. 63a.) The ALJ also found that Tymiak “submitted no proof that his earnings record is incorrect” and that no exception to the statute of limitations applied. 6 Id. Based on these findings, the ALJ concluded that Tymiak’s “monthly benefit payment has been correctly calculated” and affirmed “the determination of the lower level.” (App. 63a.) B. District Court Proceedings Tymiak sought review before the District Court. In his complaint, Tymiak presented five counts in a somewhat rambling and unclear manner. In addition, Tymiak’s arguments are not well-formulated and change with every document he files. Thus, the complaint poses significant challenges in discerning the substance and import of each of the claims. Count I alleges fraud on the court in Tymiak v. United States, 7 No. 2:98-cv-01633 6 Section 405(c)(4) of title 42 allows for correction of “any item of wages or self- employment income” within the time limit established by 42 U.S.C. § 405 (c)(1)(B). That time limit is “a period of three years, three months, and fifteen days.” 42 U.S.C. § 405 (c)(1)(B). 7 The District Court and the government refer to this case as Tymiak v. Wiltshire. However, the docket report and documents from that case filed as exhibits before the District Court use Tymiak v. United States as the caption. 4 (W.D. Pa.) 8 and Tymiak’s disbarment proceedings in Minnesota, Order C6-82-900. 9 Count II is titled as a claim for a “Class-of-One Equal Protection of Fundamental Rights.” (App. 38a.) According to Tymiak, the Director of the Minnesota Lawyers Professional Responsibility Board (“MLPRB”), employees of the NCUA, Michael Komichak, 10 and James Herb 11 acted in concert “to unlawfully cause the termination of [Tymiak’s] employment and to stigmatize his membership in a local credit union[.]” (App. 39a.) This count exemplifies the difficulties associated with attempting to decipher Tymiak’s submissions. While the District Court interpreted this count as an equal protection claim arising directly under the Fifth Amendment, we find that this count attempts to articulate a claim pursuant to 42 U.S.C. § 1983 based on Tymiak’s allegation 8 In 1997, the Ukrainian Credit Union terminated its relationship with North Hills Computer Associates. Apparently, in response to this termination, Tymiak sued the United States, Diane L. Wiltshire, who was an employee of the National Credit Union Administration (“NCUA”), and the NCUA Board in state court. This action was removed to federal court. The District Court granted the government’s motion for summary judgment in February 2000. 9 In 1982, Tymiak was suspended from the practice of law in Minnesota. In 1984, Tymiak was disbarred there. In re Petition for Disciplinary Action Against Tymiak, 343 N.W.2d 291 (Minn. 1984). On January 24, 1983, Pennsylvania imposed reciprocal discipline and suspended him. The record reflects no subsequent action in the Pennsylvania disciplinary proceedings. 10 The complaint lists Mr. Komichak’s first name as Michael, but the letter written by Mr. Komichak on December 12, 1997 to Tymiak regarding Tymiak’s consultant services shows his name as Raymond M. Komichak. Mr. Komichak was the director of the Ukrainian Credit Union. 11 Mr. Herb is apparently an attorney in Pittsburgh who, in 1998, provided an IRS 1099-MISC form to Tymiak showing a payment of $2,500 as non-employee compensation. This income was not reported on Tymiak’s 1998 tax return. 5 that “state actors . . . acting under color of law” violated his Fifth Amendment rights. (App. 38a.) Count III claims that the failure to consider income Tymiak allegedly earned from a family trust, as well as income allegedly earned as a home worker but paid after the death of his employer, was a violation of his due process rights. Count IV alleges the SSA miscalculated his earnings by failing to account for (1) royalties allegedly earned by Tymiak from his copyright and (2) payment from a settlement agreement entered into in May 1992 in the case of Tymiak v. Public Service Plaza Federal Credit Union, which related to the copyright. 12 He also seeks a declaration that his copyright is a work for hire. Finally, Count V seeks to remove the Minnesota disbarment action to the District Court. Before the District Court, the Commissioner moved to dismiss, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). In addition to his opposition to the motion to dismiss, Tymiak filed two motions. The first sought to place interpleader funds in the District Court’s registry and file a “supplemental complaint in the nature of interpleader.” 13 (S. 12 Tymiak states that he reported the $22,000 he received from the settlement on his tax form 4797 in 1992, but that document was not included in the exhibits provided to the District Court. 13 In his motion, Tymiak claimed he obtained $60,000 from a family trust and that the Commissioner, the Director of the MLPRB, the Disciplinary Board of the Supreme Court of Pennsylvania, or the NCUA may be entitled to some or all of his funds. Tymiak asserted that the $60,000 is the correct amount of taxes he should have paid regarding his self-employed income, while the alleged claims of the two disciplinary boards arise from 6 App. 35 .) The second motion sought remand, pursuant to 42 U.S.C. § 405 (g). The District Court referred all three motions to a magistrate judge. In a report and recommendation (“R&R”), the magistrate judge recommended that the motion to dismiss be granted. Relying on Nichole Medical Equipment & Supply, Inc. v. TriCenturion, Inc., 694 F.3d 340 (3d Cir. 2012), the magistrate judge concluded that the District Court lacked jurisdiction over the claims in counts I, II, III, and V because those claims had not been raised before the ALJ and, as a result, were not exhausted. As to Count IV, the magistrate judge recommended granting the motion to dismiss because Tymiak’s claims related to correcting his ER were barred by the statute of limitations. The R&R also recommended denying Tymiak’s other motions. Tymiak filed objections to the R&R, along with three additional motions. The first motion sought disqualification of the Commissioner’s counsel. Tymiak’s second motion sought to vacate the Pennsylvania and Minnesota disciplinary orders. Tymiak’s third motion sought “a de novo determination of matters referred to magistrate judge, or, in the alternative, to defer consideration of any dispositive matters” until the disqualification motion was decided. (S. App. 245.) Pursuant to 28 U.S.C. § 636 (b)(1), the District Court reviewed the R&R de novo. After considering the R&R and reviewing Tymiak’s objections, the District Court adopted the R&R as the opinion of the Court, as supplemented in the opinion and order. The District Court dismissed Tymiak’s three additional motions as moot. Tymiak now his disciplinary proceedings in the early 1980s. Tymiak provides no explanation as to the alleged claim that the NCUA may have an interest in these funds. 7 appeals. C. Appeal to This Court On appeal, Tymiak emphasizes the point that with respect to the SSA it is the ER that has “primacy,” “not the record of taxation of those earnings.” Appellant’s Br. 8. According to Tymiak, “[t]he ALJ and the district court erred as a matter of law by basing their decision[s] on an erroneous, prejudicial and discriminatory construction of ‘earnings’ and ‘contributions to the national economy.’” Id. at 8–9. He seeks amendment of his ER to include earnings from his copyright and distributions from various trusts. 14 Tymiak also argues that “[t]he ALJ failed to meet her duty to develop the record by not even considering a ‘scintilla’ of [his] documentary evidence.” Id. at 15. Tymiak raises a congeries of other arguments on appeal, most of which have no bearing on the case before us. The arguments he raises with respect to the Court’s jurisdiction and the ALJ’s review of the evidence will be discussed below. Any and all other arguments are deemed to be waived, having never been raised before the District Court. “We generally do not consider arguments raised for the first time on appeal . . . .” Orie v. Dist. Att’y Allegheny Cnty., 946 F.3d 187 , 195 (3d Cir. 2019) (quoting Gardner v. Grandolsky, 585 F.3d 786 , 793 (3d Cir. 2009)). Tymiak’s failure to provide specificity in his pleadings makes the task of identifying his claims a fool’s errand. II. JURISDICTION We review de novo the District Court’s decision that it lacked jurisdiction over 14 Before the ALJ, Tymiak offered evidence related to only one trust that was established by his family. 8 Counts I, II, III, and V. 15 Metro. Life Ins. Co. v. Price, 501 F.3d 271 , 275 (3d Cir. 2007). In reaching the conclusion it lacked jurisdiction over these claims because Tymiak failed to exhaust them, the District Court relied on Nichole Medical, 694 F.3d 340 . By doing so, the District Court erred. Nichole Medical “originate[d] from relationships that were created under the Medicare Act, 42 U.S.C. § 1395 et seq.” 694 F.3d at 342. The Medicare Act incorporates the judicial review provisions set forth in 42 U.S.C. § 405 (g) and (h), with the caveat “that, in applying such provisions with respect to this subchapter, any reference therein to the Commissioner of Social Security or the Social Security Administration shall be considered a reference to the Secretary or the Department of Health and Human Services, respectively.” 42 U.S.C. § 1395ii. Therefore, Nichole Medical’s requirement that all claims be exhausted before the Secretary before being raised in the courts means that claims made in proceedings pursuant to the Medicare Act must be presented to the Secretary of Health and Human Services. Nichole Medical, 694 F.3d at 349. Unlike the exhaustion requirement set forth in Nichole Medical for Medicare cases, claimants in Social Security cases are only required to present their claim for benefits to the Commissioner. 16 See, e.g., Mathews v. Eldridge, 424 U.S. 319 , 328 15 As discussed below, we agree with the District Court that there is no jurisdictional bar to Count IV. 16 We recognize that the Social Security Act requires exhaustion of the administrative process, but that process does not require issue exhaustion. 20 C.F.R. § 404.900 (a) (setting forth five steps in the administrative review process); 20 C.F.R. 9 (1976) (“The nonwaivable element is the requirement that a claim for benefits shall have been presented to the Secretary.”). Tymiak has clearly done so. Further, neither we nor the Supreme Court have recognized an issue exhaustion requirement in Social Security cases. Sims v. Apfel, 530 U.S. 103 , 112 (2000) (“Claimants who exhaust administrative remedies need not also exhaust issues in a request for review by the Appeals Council in order to preserve judicial review of those issues.”); Cirko ex rel. Cirko v. Comm’r Social Security, 948 F.3d 148 , 153 & n.3 (3d Cir. 2020) (“[T]here is no statutory or regulatory [issue] exhaustion requirement that governs SSA proceedings.”). Based on that lack of statutory or regulatory guidance, we have observed that “whether we should impose an exhaustion requirement [in Social Security cases] ‘is a matter of sound judicial discretion.’” Id. at 153 (quoting Cerro Metal Prods. v. Marshall, 620 F.2d 964 , 970 (3d Cir. 1980)). Even if we were to exercise our discretion here and impose an issue exhaustion requirement, we would find that Tymiak exhausted the issues raised in Counts I, II, and V. In his Request for Reconsideration, Tymiak presented the issues raised in those counts to the Commissioner. Nonetheless, as we explain below, the District Court lacked jurisdiction over Counts I, II and V. With respect to Count III, to the extent Tymiak § 404.900(b) (noting that if a claimant “do[es] not take the next step within the stated time period, [the claimant] will lose [his or her] right to further administrative review and [his or her] right to judicial review, unless [the claimant] can show us that there was good cause for [his or her] failure to make a timely request for review”); Sims v. Apfel, 530 U.S. 103 , 106–07 (2000) (discussing exhaustion of administrative remedies). The procedural history here makes clear that Tymiak properly exhausted his administrative remedies. 10 argues the ALJ erred in rejecting and/or disregarding some of his evidence, we will review that question on the merits. In Count I, Tymiak alleges fraud on the court in Tymiak v. United States, which was closed in 2000. In order to obtain relief based on fraud on the court, Tymiak should have filed a motion pursuant to Fed. R. Civ. P. 60(d)(3) to set aside the judgment in the original case, rather than adding a count in a new complaint. We are therefore unable to review this issue. 17 The § 1983 claim in Count II is clearly untimely. The action forming the basis of this claim—the termination of North Hills Computer Associates’ services—occurred on June 30, 1998. The statute of limitations period for this alleged § 1983 due process violation is two years. See, e.g., Kach v. Hose, 589 F.3d 626 , 634 (3d Cir. 2009) (“The length of the statute of limitations for a § 1983 claim is governed by the personal injury tort law of the state where the cause of action arose. The statute of limitations for a § 1983 claim arising in Pennsylvania is two years.” (internal citations omitted)). Therefore, Tymiak’s cause of action, which accrued approximately twenty years ago, is barred by 17 Even if we were able to address this count, we would dismiss it pursuant to Fed. R. Civ. P. 12(b)(6) for failing to state a claim. To demonstrate fraud on the court, “there must be: (1) an intentional fraud; (2) by an officer of the court; (3) which is directed at the court itself; and (4) in fact deceives the court.” Herring v. United States, 424 F.3d 384 , 386 (3d Cir. 2005) (announcing the legal test for such actions for the first time, because “[a]ctions for fraud upon the court are so rare that this Court has not previously had the occasion to articulate a legal definition of the concept”). In making this claim, Tymiak points only to the inclusion of the Minnesota disbarment order as an exhibit in the court of record in Tymiak v. United States. He offers no explanation as to how inclusion of a valid order from Minnesota constitutes intentional fraud that somehow deceived the court. 11 the statute of limitations. Count V seeks to remove Tymiak’s Minnesota disbarment action to the District Court. Under the clear language of the statute, only pending cases can be removed. 28 U.S.C. § 1441 (a) (“[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.”). Since the Pennsylvania suspension became final in 1983 and the Minnesota disbarment proceedings terminated in 1984, there are no pending actions that can be removed to the District Court. Tymiak propounds numerous additional theories to establish some jurisdictional foothold, none of which succeed. Specifically, he cites to mandamus, the Rules of Decision Act, the collateral order doctrine, the All Writs Act, the Erie doctrine, and federal question jurisdiction. In rapid succession, Tymiak makes conclusory statements that do nothing more than recite the existence of these legal theories. Tymiak provides no analysis to demonstrate the relevance or application of any one of these doctrines to his claims; he merely names the doctrines, provides short definitions of each, and proceeds to the next section of his brief. An appellant’s brief is required to contain argument, which must include “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.” Fed. R. App. P. 28(a)(8)(A); see also 3d Cir. L.A.R. 28. Cursory treatment of an issue is insufficient to preserve the issue on appeal and issues treated in only a perfunctory manner are considered forfeited. See 12 Lifewatch Servs. Inc. v. Highmark Inc., 902 F.3d 323 , 338 (3d Cir. 2018) (noting that plaintiff “forfeited . . . theories by not fully briefing them on appeal”); Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136 , 145 (3d Cir. 2017) (“[W]e have consistently refused to consider ill-developed arguments or those not properly raised and discussed in the appellate briefing.”); Doeblers’ Pa. Hybrids, Inc. v. Doebler, 442 F.3d 812 , 821 n.10 (3d Cir. 2006) (noting that “passing and conclusory statements do not preserve an issue for appeal”). None of Tymiak’s references to the myriad jurisdictional theories satisfy this requirement. Tymiak engages in no analytical reasoning and provides no explanation for his positions. With respect to Counts III and IV, the District Court had jurisdiction pursuant to 42 U.S.C. § 405 (g). We have jurisdiction pursuant to 42 U.S.C. § 405 (g) and 28 U.S.C. § 1291 . Rutherford v. Barnhart, 399 F.3d 546 , 552 (3d Cir. 2005). III. STANDARD OF REVIEW We review de novo the District Court’s order granting the motion to dismiss. Jones v. ABN Amro Mortg. Grp., Inc., 606 F.3d 119 , 123 (3d Cir. 2010). “[W]e must uphold a final agency determination unless we find that it is not supported by substantial evidence in the record.” Rutherford, 399 F.3d at 552 . “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id. (quoting Reefer v. Barnhart, 326 F.3d 376 , 379 (3d Cir. 2003)). “It is ‘more than a mere scintilla but may be somewhat less than a preponderance of the evidence.’” Id. (quoting Ginsburg v. Richardson, 436 F.2d 1146 , 1148 (3d Cir. 1971)). 13  IV. DISCUSSION A. Substantial Evidence Turning to the merits of Tymiak’s arguments on appeal, the substance of those arguments appears to be a claim that the ALJ did not consider evidence of income from a trust, his work as a home worker, and royalties from his copyright. Tymiak also argues before us that the ALJ failed to “scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.” Appellant’s Br. 25 (quoting Hankerson v. Harris, 636 F.2d 893 , 895 (2d Cir. 1980)). Contrary to Tymiak’s arguments, the ALJ considered the evidence he presented. Unfortunately for Tymiak, none of the many pages of documentary evidence he provided to the ALJ showed he had any income as a home worker or from royalties from his computer program. The tax returns from 1987, 1989, 1991, 1993, 1994, 1995, 1996, 1997, and 1998 he submitted as evidence had no entries on the lines for wages and royalties. 18 Tymiak provided no other evidence showing that he had received any income from either of these sources. To the extent he claims Ms. Morse’s will evidences intent to compensate him after her death, it does not. The will makes no mention of Tymiak. To the extent Ms. Morse notarized Tymiak’s application for bar admission, that is not evidence of income. Tymiak’s argument as to the ALJ’s rejection of his evidence of the family trust being established to compensate him as a home worker also fails. “The ALJ must 18 For 1992, Tymiak only submitted a Schedule C, and not a purportedly complete tax return. 14 consider all the evidence and give some reason for discounting the evidence she rejects.” Plummer v. Apfel, 186 F.3d 422 , 429 (3d Cir. 1999). The ALJ did just that. With respect to the family trust, the ALJ observed that “there is nothing in [the] record to support” Tymiak’s assertion “that payments out of a trust fund should be considered wages, since he believed his father, who was president of one of the credit unions, meant this to compensate him for the loss of income from his copyright.” (App. 62a.) Further, “since the creator of the trust was a relative, it is equally likely that the monies in the fund were from his father’s assets and meant to support [him] after the death of his parent.” Id. We, like the ALJ, cannot find any evidence to support Tymiak’s argument that the proceeds of the family trust were meant to be compensation for Tymiak’s service as a home worker. Not only that, but the trust documents submitted by Tymiak indicate the trust was established in 2009, well after the years 1991 through 1995, which was the time period for which Tymiak sought review before the ALJ. We conclude that the ALJ carefully and thoroughly explored all of the relevant facts and correctly concluded that Tymiak’s monthly benefit payment has been correctly calculated. Further, since Tymiak provided no evidence of any wages, royalties, or self- employment income, we need not address his arguments as to the exceptions to the statute of limitations for correction of an ER set forth in 42 U.S.C. § 405 (c)(5)(C) and (c)(5)(E). B. Motion to Disqualify Counsel Tymiak argues that the District Court erred by dismissing as moot his motion to disqualify the entire United States Attorney’s Office (USAO) for the Western District of 15 Pennsylvania as the Commissioner’s counsel. Tymiak sought disqualification of the USAO for “Conflict of Interest, Self-Interest, the Advocate Witness Rule and Imputed Structural Ethical Breaches.” (Appellant’s Br. at 39.) Specifically, Tymiak alleged violations of (i) the witness-advocate rule, Pa. R.P.C. 3.7(b); (ii) attorneys knowingly making false statements, Pa. R.P.C. 4.1; (iii) conflicts of interests to current clients, Pa. R.P.C. 1.7; and (iv) imputation of conflicts of interests to a lawyer’s firm, Pa. R.P.C. 1.10. As we explain below, we will affirm the District Court. We review the District Court’s denial of a motion to disqualify counsel for abuse of discretion. Lazy Oil Co. v. Witco Corp., 166 F.3d 581 , 588 (3d Cir. 1999); cf. United States v. Bellille, 962 F.3d 731 , 738 (3d Cir. 2020) (“Questions regarding attorney appointment and withdrawal are committed to the District Court’s sound discretion, and its determination is guided by the professional rules of conduct.”). “However, to the extent that the questions underlying the disqualification motion are purely legal . . . our review is plenary.” Lazy Oil, 166 F.3d at 588 . Tymiak’s motion to disqualify cited several bases for the disqualification, including an alleged conflict of interest. His “claim of . . . [a] conflict of interest calls into question the integrity of the process in which the allegedly conflicted counsel participates.” Grimes v. District of Columbia, 794 F.3d 83 , 86 (D.C. Cir. 2015). Because of that, the court must resolve the motion to disqualify “before it turns to the merits of any dispositive motion.” Id. Here, however, the District Court found it lacked jurisdiction over four of the claims in the complaint and that the fifth claim was barred by the statute of limitations. Therefore, the District Court could not, and did not, reach the 16 merits of the case. Once the District Court concluded it lacked the ability to review the merits of the case, dismissing as moot the remaining motions, including the motion to disqualify counsel, was correct. We will therefore affirm. V. CONCLUSION For the reasons stated, we will affirm the District Court’s order. 17

2021-01-26 18:00:24.794907+00

https://www2.ca3.uscourts.gov/opinarch/202068np.pdf

DLD-063 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 20-2068 ___________ JEAN EMMANUEL RODRIGUEZ, Appellant v. WAWA INC; BRANDON DOE; PATRICIA WARREN; GABRIELLE B.; ERIN P. LOUCKS; MIKE RAINEY; JANE DOE; JANETT DOE; SOMERS POINT POLICE DEPARTMENT ____________________________________ On Appeal from the United States District Court for the District of New Jersey (D.N.J. Civil No. 1:18-cv-13586) District Judge: Honorable Noel L. Hillman ____________________________________ Submitted for Possible Dismissal Due to a Jurisdictional Defect or Possible Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6 January 7, 2021 Before: JORDAN, KRAUSE and PHIPPS, Circuit Judges (Opinion filed: January 26, 2021) _________ OPINION* _________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM Pro se appellant Jean Rodriguez appeals from the District Court’s order dismissing his complaint pursuant to 28 U.S.C. § 1915 (e)(2)(B). For the reasons that follow, we will affirm the District Court’s judgment. In September 2018, Rodriguez filed a complaint in the District Court pursuant to 42 U.S.C. § 1983 , alleging that his civil rights were violated by Wawa, Inc., Wawa employees, and the Somers Point Police Department. Rodriguez claimed that in March 2015, Wawa employees denied him service based on his race, stopped carrying a product that he bought, and conspired with the Somers Point Police Department to convict him of robbery. He sought $30 million in damages. After granting Rodriguez’s application to proceed in forma pauperis, the District Court, in a lengthy order, screened and dismissed his complaint for failure to state a claim upon which relief can be granted. The District Court gave Rodriguez 20 days to amend his complaint but warned him that if he failed to file an amended complaint within 20 days, his case would be dismissed. Rather than filing an amended complaint, Rodriguez filed a notice of appeal within the time to amend provided by the District Court.1 1 Although Rodriguez’s notice of appeal was not placed on the District Court docket until May 2020, it was filed in a different district court on April 7, 2020, 15 days after the District Court issued its order, and subsequently transferred to the District of New Jersey. We note that this administrative docketing delay does not affect the timeliness of Rodriguez’s appeal. See LaVallee Northside Civic Ass’n v. Virgin Islands Coastal Zone Mgmt. Comm’n, 866 F.2d 616 , 626 (3d Cir. 1989) (“A party who brings an appeal within the prescribed statutory time, but unknowingly does so in the wrong forum, has nonetheless “appealed” within the appropriate limitation period in the sense that notice 2  We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.2 We construe Rodriguez’s allegations liberally and exercise plenary review over the District Court’s order dismissing Rodriguez’s complaint. See Allah v. Seiverling, 229 F.3d 220 , 223 (3d Cir. 2000). We may summarily affirm a district court’s decision “on any basis supported by the record” if the appeal fails to present a substantial question. See Murray v. Bledsoe, 650 F.3d 246 , 247 (3d Cir. 2011) (per curiam). As the District Court correctly concluded, a municipal police department is not a “person” for purposes of § 1983. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658 , 694 (1978). Further, Rodriguez has not made allegations to suggest that Wawa or its employees are state actors for purposes of § 1983. See Benn v. Universal Health Sys., has been given to the adverse party.”); see also United States v. Solly, 545 F.2d 874 , 876 (3d Cir. 1976) (“[W]henever a notice of appeal is filed in a district court, it is filed as of the time it is actually received in the clerk’s office even though it is designated as filed by the clerk’s office at a later date.”). 2 We have ruled that we can exercise appellate jurisdiction over a litigant’s appeal from an order dismissing a complaint without prejudice and with leave to amend on the basis that the litigant failed “to move to amend within the [period of time] granted by the court.” Batoff v. State Farm Insurance Co., 977 F.2d 848 , 851 n.5 (3d Cir. 1992). By failing to file an amended complaint within the time allotted by the District Court and filing a notice of appeal instead, Rodriguez “elected to stand” on his complaint. See id.; see also Hoffman v. Nordic Naturals, Inc., 837 F.3d 272 , 279 (3d Cir. 2016); Huertas v. Galaxy Asset Mgmt., 641 F.3d 28 , 31 n.3 (3d Cir. 2011) (per curiam). 3 Inc., 371 F.3d 165 , 169-70 (3d Cir. 2004). No other basis for relief is apparent from Rodriguez’s allegations.3 For these reasons, we will summarily affirm the District Court’s judgment. 3 To the extent that Rodriguez’s allegations could be liberally construed as an attempt to invoke 42 U.S.C. § 1981 or § 1985, his vague and conclusory statements fall short of what is required to state a claim. See Farber v. City of Paterson, 440 F.3d 131 , 134 (3d Cir. 2006); Pryor v. Nat’l Collegiate Athletic Ass'n., 288 F.3d 548 , 569 (3d Cir. 2002). 4

2021-01-26 17:08:59.732573+00

http://www.courts.state.ny.us/reporter/3dseries/2021/2021_00377.htm

Matter of TELX New York LLC v Tax Commn. of the City of N.Y. (2021 NY Slip Op 00377) Matter of TELX New York LLC v Tax Commn. of the City of N.Y. 2021 NY Slip Op 00377 Decided on January 21, 2021 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: January 21, 2021 Before: Renwick, J.P., Manzanet-Daniels, Kapnick, Kern, Kern, JJ. Index No. 264414/15 Appeal No. 12937 Case No. 2020-02889 [*1]In the Matter of TELX New York LLC et al., Petitioners-Appellants, v The Tax Commission of the City of New York et al., Respondents-Respondents. Law Office of David M. Wise, P.A., Union (David M. Wise of counsel), for appellant. James E. Johnson, Corporation Counsel, New York (Phillip M. Caal of counsel), for respondents. Order, Supreme Court, New York County (Lori S. Sattler, J.), entered on or about May 19, 2020, which denied petitioners' motion for partial summary judgment on the double taxation claim and granted respondents' cross motion to dismiss that claim, unanimously affirmed, without costs. The court correctly dismissed petitioners' claims regarding double taxation based on res judicata (claim preclusion). Contrary to petitioners' argument, the double taxation issue was litigated in a prior action between these parties, which resulted in a final judgment on the merits (the Prior Action)(see Level 3 Communications, LLC v Jiha, 162 AD3d 465 [1st Dept 2018], lv denied 32 NY3d 906 [2018], lv denied 32 NY3d 917 [2019]). While it is true that the motion court in the Prior Action dismissed the double taxation claim on subject matter jurisdiction grounds, this was not the sole reason for dismissal. The court also reviewed and decided that issue on the merits and rejected plaintiffs' statute-based arguments as to the invalidity of the separate assessments that resulted in the alleged improper double taxation. On appeal, this Court affirmed, holding that "[t]o the extent that plaintiffs challenge the tax assessments as excessive, unequal or unlawful, or that their real property was misclassified, the court properly determined that their exclusive remedy was a proceeding pursuant to RPTL article 7" (id. at 465). Petitioners' contention that based on this Court's order in the Prior Action, the double taxation claim was not determined on the merits but was dismissed solely on subject matter jurisdiction grounds is unavailing. This Court's reference to an RPTL Article 7 proceeding concerned the specific challenge to the actual tax assessments (id. at 465 [citing RPTL 700, 706; Kahal Bnei Emunim & Talmud Torah Bnei Simon Israel v Town of Fallsburg, 78 NY2d 194, 204 [1991]), not determinations concerning the legal issue of whether the policies leading to the assessments and the resulting taxes were legally adopted, validly implemented, and led to lawful outcomes. Additionally, this Court's finding that the motion court in the Prior Action properly dismissed the "remaining claims, including [the] speculative challenges to the method employed in the assessments and the constitutionality of the tax itself" (Level 3 Communications, LLC, 162 AD3d at 465) necessarily encompassed the merits of whether the separate assessments leading to the alleged double taxation are legally proper. Since petitioners' claim that the policy and practice of separate assessments leads to an unlawful double taxation was considered and rejected in the Prior Action, res judicata precludes this claim from being relitigated based on the same or new arguments raised in this proceeding (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347 [1999]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: January 21, 2021

2021-01-26 18:00:18.581652+00

https://www2.ca3.uscourts.gov/opinarch/192151p.pdf

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 19-2151 ______________ UNITED STATES OF AMERICA v. KENNETH SMUKLER, Appellant ______________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-17-cr-00563-002) District Judge: Honorable Jan E. DuBois ______________ Argued June 17, 2020 Before: JORDAN, MATEY, ROTH, Circuit Judges. (Filed: January 26, 2021) Eric L. Gibson, Esq. (Argued) Office of the United States Attorney 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106 Counsel for Appellee Peter Goldberger, Esq. (Argued) 50 Rittenhouse Place Ardmore, PA 19003 Counsel for Appellant ______________ OPINION ______________ MATEY, Circuit Judge. Interpreting the term “willfully” can be a challenge. It is a “chameleon word,” United States v. Starnes, 583 F.3d 196 , 210 (3d Cir. 2009), and “[i]n any closely reasoned problem, whether legal or nonlegal, chameleon hued words are a peril both to clear thought and to lucid expression,” Bryan A. Garner, A Dictionary of Modern Legal Usage 145 (2d ed. 1995) (quoting Wesley N. Hohfeld, Fundamental Legal Conceptions 35 (1919) (reprint 1966)). But we take comfort knowing that we do not struggle alone with this “notoriously malleable” concept. Bryan v. United States, 524 U.S. 184 , 202 (1998) (Scalia, J., dissenting). Indeed, “willfully” is “a word of many meanings” whose definition is “dependent on the context in which it appears.” Id. at 191 (majority opinion). And just as a chameleon’s appearance depends on the surroundings, we look to the whole text of a law to best “interpret the words 2 consistent with their ordinary meaning . . . at the time Congress enacted the statute.” Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067 , 2070 (2018) (alteration in original) (internal quotation marks omitted). We approach that task with a full box of “traditional tools” of construction. Kisor v. Wilkie, 139 S. Ct. 2400 , 2415 (2019). Aided by these principles, interpreting “willfully” seems less troublesome. Kenneth Smukler asks us to do just the opposite, arguing for an exceptional understanding of “willfully” in otherwise unexceptional statutes. But the ordinary understanding of “willfully” is the best one. Smukler does, however, rightly point out that the District Court departed from our prior decisions when instructing the jury on two of his nine counts of conviction. So we will vacate his conviction on those counts. Smukler also brings a host of other procedural and substantive challenges from his trial. Finding none with merit, we will affirm his other convictions. I. BACKGROUND Kenneth Smukler made a thirty-year career in the rough and tumble world of campaign politics. From mayors and city councils, to members of Congress and presidents, Smukler steered campaigns across Pennsylvania. And as an attorney, Smukler developed familiar expertise with Federal Election Commission (“FEC”) law. Then, as it sometimes does in politics, things went wrong. A. The 2012 Democratic Primary for the First Congressional District of Pennsylvania In 2012, United States Representative Bob Brady ran for reelection to represent Pennsylvania’s First Congressional 3 District in Philadelphia. Jimmie Moore, a former Philadelphia Municipal Court Judge, challenged Brady in the Democratic primary. Moore struggled to raise money, so he personally loaned his campaign about $150,000. It was not enough, and Moore soon concluded that he would not win. He turned to Plan B, reaching out to former Philadelphia Mayor Wilson Goode to arrange a meeting between himself and Brady, with Goode providing the “glue.” (App. at 971, 1555.) In a scheme lacking only a smoke-filled backroom, Moore, Goode, and Brady hashed out a deal for Moore to drop out of the race. In exchange, Brady agreed to give Moore $90,000 to pay off campaign debts and reimburse some of Moore’s campaign loan. Of course, as Moore, Goode, and Brady all knew, one candidate cannot bribe another candidate to drop out of an election. They needed a plan to steer the money to Moore. Brady suggested that he buy a poll that Moore had conducted. The purpose was plain: “mov[e] money from Bob Brady’s campaign to Jimmie Moore’s campaign.” (App. at 1318.) With an agreement in place, Moore dropped out of the race a few days later, clearing Brady’s path to the Democratic nomination. But the money still needed a mover, and Smukler emerged as the middleman. Once Moore formally dropped out, Smukler met with Moore “to make the arrangements” and “set up the process for [Moore] to get the money.” (App. at 953, 1071.) Smukler proposed a three-part scheme. First, they would set up a bogus corporation to receive the funds from the Brady campaign. Then, Moore would create “some dummy invoices.” (App. at 954, 1063.) Finally, Smukler would pay Moore in three installments, through cash sent to Moore’s 4 campaign manager and romantic partner, Carolyn Cavaness. 1 For good measure, Smukler would route the payments to Cavaness through the consulting firm of Donald “D.A.” Jones, a political consultant working for Brady, for work that Cavaness never performed. 2 All went as planned, including, of 1 Smukler advised Cavaness that the Brady campaign would pay $65,000 in two installments for old polling data from the Moore campaign. According to Smukler’s instructions, Moore and Cavaness set up a shell company, CavaSense and Associates, LLC, that would sell the old poll to Smukler. Through the shell company, Cavaness would contract with Voterlink Data Systems (“VDS”), a company operated by Smukler, so that VDS would pay $65,000 in two installments for the poll. On June 11, 2012, the Brady campaign paid VDS $40,000 for “Survey and Polling Services.” Two days later, VDS paid CavaSense the first installment of $40,000 in a check signed by Smukler. On July 10, 2012, the Brady campaign wrote another check to VDS in the amount of $25,000. One week later, on July 17, 2012, VDS wrote CavaSense a second check, also signed by Smukler, for $25,000. Both checks arrived in Cavaness’ personal bank account shortly after receipt. 2 Under Smukler’s plan, the Brady campaign would pay Jones $25,000 and, in turn, Jones would pay Cavaness $25,000. A plan Jones was comfortable with “[a]s long as it wasn’t [his] money.” (App. at 1320.) On June 20, 2012, Cavaness sent Jones an email with invoices from CavaSense, totaling $25,000. Jones waited until he received the money from Brady’s campaign before paying Cavaness. Then the Brady campaign cut a check to Jones in the amount of $25,000 for “Political Consulting.” Around seven days later, Jones sent a check to CavaSense for $25,000. Cavaness did no work for 5 course, both campaigns omitting accurate reporting of any of these transactions to the FEC. B. The 2014 Democratic Primary for the Thirteenth Congressional District of Pennsylvania In 2014, former United States Representative Marjorie Margolies launched a comeback bid. Like many elections, congressional contests occur in two cycles: a primary election, where candidates of the same political party square off, followed by a general election between the prevailing candidates of each party to decide who will represent the people. Federal election law limits contributions to a candidate in both phases. So while candidates may collect primary and general election funds at any time, they cannot use general election funds to pay for primary election expenses. That means if a candidate loses the primary, the campaign refunds any general election contributions to donors. Margolies faced a crowded field of primary opponents and hired Smukler to run her campaign. But as the race dragged on, Margolies ran low on funds and Smukler dipped into the general election reserve. It wasn’t enough; Smukler needed more money to cover crucial campaign expenses like media buys. So he leaned on friends and family to get cash quickly, using them as straw men to evade federal election laws and pass through money to the campaign. We detail several of those donations and associated misrepresentations. Jones in exchange for the cash. In fact, when Cavaness sent the invoices, Jones had “never met her.” (App. at 1328.) 6  1. Smukler Sends $78,750 to the Margolies Campaign On April 29, 2014, Smukler emailed Jennifer May, Treasurer of the Margolies campaign, “I will be wiring $78,750 of the segregated media account funds into the campaign media account.” (Supp. App. at 461.) No such “segregated media account” existed. A few days later, he wired $78,750 from his personal brokerage account to another of his companies, Black and Blue Media. From there, he wired the same amount from Black and Blue Media to a new Margolies campaign account to quickly pay vendors. Then Smukler asked his brother for $75,000, which his brother promptly sent to Smukler’s brokerage. 2. The Campaign Spends Money Earmarked for the General Election and Smukler Steers Another $150,000 to Cover the Difference Still short on cash, Smukler directed May to use general election funds on the primary. A deficit soon swelled, as the primary fund declined to a negative cash on hand of $126,761 and change. Then, Margolies lost the primary, leaving the campaign sixty days to refund all general election contributions. May suggested that Margolies pay the deficit herself, a lawful option that Smukler declined. Instead, he asked campaign officials, including May, to tell him “exactly what amount [Smukler’s two companies:] InfoVoter and Black [and] Blue need to return to the campaign to reconcile all general fund contributions” as he “intend[ed] to transfer [the money].” (App. at 774.) Sensibly, May concluded that if Margolies did not write a check for the overage, “we are all in really big trouble.” (App. at 2212.) 7  May was correct; Smukler was undeterred. He surprised May with the claim that the Margolies campaign “did not spend the general [election] money as it was escrowed in” Smukler’s consulting company InfoVoter. (App. at 2212.) “[O]nce the money is refunded,” Smukler explained, “all the general [election] checks will be issued within the [sixty-day] period.” (App. at 2212.) That same day, an old friend of Smukler’s, Kevin Morgan, wired $150,000 into Smukler’s personal brokerage account. Two days later, Smukler wired $40,000 from his personal account to Black and Blue Media and $110,000 from his personal account to InfoVoter. It all wound up in the Margolies campaign in two separate transfers from Black and Blue Media and InfoVoter. Smukler directed both payments to appear as “[r]efund[s]” on the next FEC report. (App. at 610, 791–800; Supp. App. at 194.) 3 3. Smukler Conceals the Transfers Smukler had another problem. Back in April, one of Margolies’ opponents filed a complaint with the FEC alleging that the campaign had spent general election contributions on primary election expenses. That was true, so Smukler spun a false tale to the campaign’s attorney, causing him to lie in the campaign’s response to the FEC. Based on Smukler’s representations, the campaign’s attorney wrote to the FEC that 3 As in 2012, Smukler used Jones as a “pass-through.” (App. at 1356.) He asked Jones to write a check to the Margolies campaign, for which he would reimburse Jones for the contribution. Which Smukler did by sending Jones a check from InfoVoter in the amount of $2,600. Jones only made the payment with the guarantee that Smukler would pay him for it. 8 the Margolies campaign had “agreed to advance a portion of [general election] funds” to certain “campaign vendors in order to secure their services . . . for the general election.” (App. at 2230.) But because “[t]he advanced funds would . . . pay for general election . . . expenses of the vendors,” after Margolies lost the primary, the vendors “refunded the advanced payments to the committee.” (App. at 2230.) Smukler’s argument benefited from apparent support from the campaign’s FEC filings, which had also described the payments from Smukler’s companies as “refunds.” (App. at 610, 791–800; Supp. App. at 194.) Based on the letter, the FEC dismissed the complaint. 4. The Margolies Conduit Contribution The hasty movement of money between Smukler’s companies and the campaign eventually caught the eye of the FEC. For one thing, Smukler’s companies “refunded” the Margolies campaign $18,000 more than the campaign paid. But companies cannot send back more than they received without categorizing the payment as a corporate contribution. The campaign told the FEC that the discrepancy was a mere error and returned $18,000 back to InfoVoter. That caused more problems by putting the now-defunct campaign back into debt. Ever ready with a solution, Smukler told Margolies that although she was on the hook, he would cover the deficit and “write a check for [$]25,000” from Black and Blue Media “and that [she] would then write a check” back to the campaign. (App. at 1216, 1237–40.) She did so. The campaign classified it as a loan on the next FEC report. C. Tolling Agreements, Indictment, Trial, and Appeal All of this consulting attracted the interest of law enforcement. With investigations mounting, Smukler and the 9 Government entered into two tolling agreements “regarding charges arising out of a payment from the Bob Brady for Congress campaign committee on or about August 23, 2012 to D. Jones & Associates in the amount of $25,000 and the subsequent use of that money by D. Jones & Associates.” 4 (App. at 133, 133–39.) The first agreement extended the time for the Government to bring certain charges against Smukler from August 23, 2017 to September 26, 2017, while the second agreement extended the statute of limitations from September 26, 2017 to October 26, 2017. 5 A grand jury later returned a 4 Both agreements advise Smukler that “the United States contends that this conduct may give rise to a number of violations of federal criminal law, including but not limited to Title 18, United States Code, Sections 2 (aiding and abetting), 371 (conspiracy), and 1001 (false statements), and Title 52, United States Code, Section 30109 (campaign finance violations).” (App. at 133, 137.) In both agreements, Smukler also acknowledges that he “understand[s] that by agreeing to toll, and thus not to assert, the claim of statute of limitations, [he is] giving up any rights [he] may have under the federal statute of limitations provisions regarding charges that may result from the investigation described in this document.” (App. at 134, 138.) 5 The tolling provision in the second agreement is more broadly worded: “I hereby agree to toll any applicable statute of limitations regarding charges arising out of a payment from the Bob Brady for Congress campaign committee on or about August 23, 2012 to D. Jones & Associates in the amount of $25,000 and the subsequent use of that money by D. Jones & Associates, as well as any charges arising out of campaign finance reports filed by Bob Brady for Congress and Jimmie 10 superseding indictment charging Smukler with eleven counts of various election law offenses related to both the 2012 and 2014 congressional elections. 6 Following trial, a jury returned Moore for Congress, from September 26, 2017 to October 26, 2017.” (App. at 137–38 (emphasis added).) 6 The grand jury returned an original indictment on October 24, 2017, charging Smukler and then-co-defendant Jones with certain election law offenses relating to former Congressman Bob Brady’s 2012 primary campaign. Jones later pleaded guilty and cooperated against Smukler. Along with charges related to Smukler’s work on the 2012 Brady campaign, the March 20, 2018 superseding indictment charged Smukler with offenses related to the Margolies 2014 campaign. Counts I through V of the superseding indictment related to the 2012 congressional primary campaign. Those counts charged Smukler with: conspiracy to commit campaign law violations and to make false statements, in violation of 18 U.S.C. § 371 (Count I); causing campaign contributions in excess of federal limits, in violation of 52 U.S.C. §§ 30109 (d)(1)(A)(i), 30116(f), and 18 U.S.C. § 2 (Count II); causing the Brady campaign committee to make false reports to the FEC, in violation of 52 U.S.C. §§ 30104 (a)(1), 30104(b)(5)(A), 30109(d)(1)(A)(i), and 18 U.S.C. § 2 (Count III); causing the Moore campaign committee to make false reports to the FEC, in violation of 52 U.S.C. §§ 30104 (a)(1), 30104(b)(5)(A), 30109(d)(1)(A)(i), and 18 U.S.C. § 2 (Count IV); and engaging in a scheme to falsify and conceal facts from the FEC, in violation of 18 U.S.C. §§ 2 and 1001(a)(1) (Count V). Counts VI through XI related to Marjorie Margolies’ 2014 congressional primary campaign. Those counts charged Smukler with: engaging in a scheme to falsify and conceal facts 11 a guilty verdict on nine of the eleven charges, acquitting Smukler on the remainder. He received a sentence of eighteen months’ imprisonment, along with fines and assessments. Smukler now challenges on appeal a mix of procedural and substantive issues from his trial. First, Smukler argues that the District Court incorrectly instructed the jury on the mens rea element of the federal criminal laws requiring the Government to prove that Smukler acted “willfully.” The District Court explained that “the Government must prove beyond a reasonable doubt that defendant knew his conduct was unlawful and intended to do something that the law forbids.” (App. at 1943.) “That is,” the Court continued, “to find that the defendant acted willfully, you must find that the evidence proved beyond a reasonable doubt that defendant acted with a purpose to disobey or disregard the law.” (App. at 1943.) Smukler sought different from the FEC, in violation of 18 U.S.C. §§ 2 and 1001(a)(1) (Count VI); making campaign contributions in excess of federal limits, in violation of 52 U.S.C. §§ 30109 (d)(1)(A)(i), 30116(f), and 18 U.S.C. § 2 (Count VII); making $2,000 or more in conduit contributions in the name of another, in violation of 52 U.S.C. § 30109 (d)(1)(A)(ii), 30116(f), 30122, and 18 U.S.C. § 2 (Count VIII); making $10,000 or more in conduit contributions in the name of another, in violation of 52 U.S.C. § 30109 (d)(1)(D), 30116(f), 30122, and 18 U.S.C. § 2 (Count IX); causing a campaign committee to make false reports to the FEC, in violation of 52 U.S.C. §§ 30104 (a)(1), 30104(b)(5)(A), 30109(d)(1)(A)(i), and 18 U.S.C. § 2 (Count X); and obstruction of justice, in violation of 18 U.S.C. §§ 2 and 1505 (Count XI). 12 language: that “the government must prove beyond a reasonable doubt that the defendant knew of the specific law prohibiting the conduct at issue, and that he acted with the intent to violate that specific law.” (App. at 312.) In rejecting Smukler’s proposed instruction, the District Court explained that it would follow “the mens rea standard of willfulness based on [the] Third Circuit Model Jury Instructions . . . and will not cover [Smukler’s] inconsistent instructions requested on that issue.” (App. at 12–13.) Smukler argues that because the Government charged him with violations in the federal election law context, our precedent required the District Court to charge the jury under a “heightened” standard of “willfully.” Second, Smukler claims the District Court erred when it denied his motion to dismiss Count II of the superseding indictment. Count II charged that Smukler “willfully caused contributions to the Jimmie Moore for Congress campaign in excess of the limits of the Election Act,” based on the three payments totaling $90,000 made from the Brady campaign in exchange for Moore’s withdrawal from the race. (App. at 109.) Those payments included (1) the June 11, 2012 payment of $40,000 routed through VDS; (2) the July 10, 2012 payment of $25,000, also sent through VDS; and (3) the August 23, 2012 payment of $25,000 steered through D. Jones & Associates. Smukler argued that the tolling agreement did not cover two of the three alleged payments, leaving those payments outside the statute of limitations. The District Court disagreed, and held that under United States v. Dees, 215 F.3d 378 (3d Cir. 2000), as applied to the Federal Election Campaign Act (“FECA”), “[t]he Government properly charged that [Smukler] and his co- conspirators caused payments aggregating at least $25,000 in a calendar year, between June 2012 and August 2012,” (App. at 25.), as “the offense . . . was completed on the date of the 13 last payment and the statute of limitations began running at that time,” (App. at 23.) Third, Smukler challenges the sufficiency of the evidence to support his conviction on Count V. That count charged Smukler with causing the Brady and Moore campaigns to make false reports to the FEC, in violation of 18 U.S.C. §§ 1001 (a)(1) and 2(b). On appeal, Smukler argues that the evidence could not prove that he “caused the Brady or Moore campaign to report or fail to report anything to the FEC.” (Opening Br. at 36.) Finally, Smukler contends that the District Court erred by failing to give specific unanimity charges as to Counts V and X. Each of those counts, Smukler claims, “charged two different acts,” that “independently constituted a criminal offense under the statute(s) cited,” thereby violating his right to a unanimous jury verdict. (Opening Br. at 40.) II. JURISDICTION AND STANDARD OF REVIEW The District Court had jurisdiction under 18 U.S.C. § 3231 . We have jurisdiction under 28 U.S.C. § 1291 because Smukler appeals from the final judgment of the District Court. The parties dispute our standard of review for the District Court’s “willfully” instruction. (Compare Opening Br. at 23, with Response Br. at 29.) Both cite authority that traces to United States v. Zehrbach, where we considered the basis for an objection to a jury instruction on a record “not entirely clear.” 47 F.3d 1252 , 1260 (3d Cir. 1995) (en banc). On the one hand, “if the objection is construed as a challenge to the court’s statement of the legal standard, we exercise plenary review.” Id. On the other, if “the objection [is] read as a 14 challenge merely to the confusing nature of the instruction,” we will “review the trial court’s expression for abuse of discretion.” Id. at 1260, 1264 . Smukler disputes only the legal standard behind the District Court’s instruction. So “[w]e exercise plenary review over [Smukler’s] challenges to the legal standards expressed in jury instructions.” United States v. Korey, 472 F.3d 89 , 93 (3d Cir. 2007) (citing Zehrbach, 47 F.3d at 1260 ). Our review of Smukler’s claim that the District Court erred in rejecting his motion to dismiss Count II is mixed. United States v. Menendez, 831 F.3d 155 , 164 (3d Cir. 2016). We “review the District Court’s legal conclusions de novo and its factual determinations, including its findings about the contents and purposes of the acts alleged in the Indictment, for clear error.” Id. As to Smukler’s claim that the evidence could not support the jury’s verdict on Count V for causing false statements to the FEC, our review is “highly deferential.” United States v. Caraballo-Rodriguez, 726 F.3d 418 , 430 (3d Cir. 2013) (en banc). We “will overturn a verdict only ‘if no reasonable juror could accept the evidence as sufficient to support the conclusion of the defendant’s guilt beyond a reasonable doubt.’” Id. at 430–41 (quoting United States v. Coleman, 811 F.2d 804 , 807 (3d Cir. 1987)). Last, we review Smukler’s claim that the District Court erred by not instructing the jury on specific unanimity as to Counts V and X for plain error because Smukler failed to object to this issue at trial. United States v. Gonzalez, 905 F.3d 165 , 182 (3d Cir. 2018). 15  III. INTERPRETING “WILLFULLY” Much of our task involves interpretation, a familiar pursuit because Congress does not always define each word in a statute. That does not invite invention. “After all, if judges could freely invest old statutory terms with new meanings, we would risk amending legislation outside the ‘single, finely wrought and exhaustively considered, procedure’ the Constitution commands.” New Prime Inc. v. Oliveira, 139 S. Ct. 532 , 539 (2019) (quoting INS v. Chadha, 462 U.S. 919 , 951 (1983)). Instead, we rely on the “fundamental canon of statutory construction” requiring that we “interpret the words consistent with their ordinary meaning . . . at the time Congress enacted the statute.” Wis. Cent. Ltd., 138 S. Ct. at 2070, 2074 (alteration in original) (internal quotation marks omitted); see also United States v. Johnman, 948 F.3d 612 , 617 (3d Cir. 2020). It is a focused inquiry and “[o]ur analysis begins and ends with the text.” Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367 , 2380 (2020) (quoting Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 , 553 (2014)). We rely on our “toolkit” containing “all the standard tools of interpretation” used to “carefully consider the text, structure, history, and purpose” of the statute. Kisor, 139 S. Ct. at 2414–15 (internal quotation marks and alteration omitted). That allows us to “‘reach a conclusion about the best interpretation,’ thereby resolving any perceived ambiguity.” Shular v. United States, 140 S. Ct. 779 , 788 (2020) (Kavanaugh, J., concurring) (quoting Kisor, 139 S. Ct. at 2448 (Kavanaugh, J., concurring in the judgment)). With that framework as our guide, we turn first to Smukler’s objection to the jury instruction on “willfully.” 16 A. “Willfully” and the Criminal Law Interpreting the legal term “willfully” is a good example of a “hard interpretive conundrum[].” Kisor, 139 S. Ct. at 2415 . Sometimes, and “[m]ost obviously,” “[willfully] differentiates between deliberate and unwitting conduct.” Bryan, 524 U.S. at 191 . “[B]ut in the criminal law,” the word “also typically refers to a culpable state of mind.” Id. Often, that requires the Government to “prove that the defendant acted with knowledge that his conduct was unlawful.” Id. at 192 (quoting Ratzlaf v. United States, 510 U.S. 135 , 137 (1994)). Often, but not always. Sometimes “a more particularized [‘willfully’] showing is required.” Id. Then, “the jury must find that the defendant was aware of the specific provision of the [statute] that he was charged with violating.” Id. at 194 (citing Cheek v. United States, 498 U.S. 192 , 201 (1991)). In Bryan, the Supreme Court explained that prosecutions “involv[ing] highly technical statutes that presented the danger of ensnaring individuals engaged in apparently innocent conduct,” id., justified a “carve out . . . exception to the traditional rule that ignorance of the law is no excuse,” id. at 195 (internal quotation marks and alteration omitted). Under this narrow departure from the ordinary legal meaning of “willfully,” the Government must “pro[ve] that the defendant was subjectively aware of the duty at issue, [which] would avoid . . . unfair results.” Id. at 195 n.22 (quoting United States v. Aversa, 984 F.2d 493 , 502 (1st Cir. 1993) (Breyer, C.J., concurring)). But the Court has limited the “need for [mens rea] specificity” only to certain cases involving the tax code and similarly complex laws governing financial institutions. Id. at 194–95 & n.22 (citing Cheek, 498 U.S. at 201 ; Ratzlaf, 510 U.S. at 138, 149 ); see also Aversa, 984 F.2d 17 at 502 (Breyer, C.J., concurring) (observing that “criminal prosecutions for ‘currency law’ violations . . . very much resemble criminal prosecutions for tax law violations” because “[b]oth sets of laws are technical; and both sets of laws sometimes criminalize conduct that would not strike an ordinary citizen as immoral or likely unlawful”). Smukler and the Government dispute which interpretation of “willfully” should apply here. 7 We have already answered that question and applied the heightened “willfully” standard to prosecutions under 18 U.S.C. §§ 2 (b) and 1001 “in the federal election law context.” United States v. Curran, 20 F.3d 560 , 569 (3d Cir. 1994). That requires us to vacate Smukler’s convictions at Counts V and VI. But we will uphold Smukler’s convictions on all other counts, because FECA is best read to contain the ordinary meaning of “willfully.” 1. Judicial Interpretations of “Willfully” Smukler’s argument proceeds from a mistaken reading of caselaw, not the best reading of the statute. Recall that he 7 Count XI charged Smukler with obstruction of justice, in violation of 18 U.S.C. §§ 2 and 1505, and did not require proof of willfulness. “To prove a violation of § 1505, the government must show: ‘(1) that there was an agency proceeding; (2) that the defendant was aware of that proceeding; and (3) that the defendant intentionally endeavored corruptly to influence, obstruct or impede the pending proceeding.’” United States v. Warshak, 631 F.3d 266 , 325 (6th Cir. 2010) (quoting United States v. Bhagat, 436 F.3d 1140 , 1147 (9th Cir. 2006)). So we will uphold his conviction on this count. 18 asked for a jury instruction incorporating a heightened “willfully” standard requiring the Government to prove both that he knew the specific law prohibiting his actions and that he intended to violate that specific law. His support is our decision in Curran holding “that a proper charge for willfulness in cases brought under sections 2(b) and 1001 [of Title 18] in the federal election law context requires the prosecution to prove that [the] defendant knew of the [specific legal] obligations, that he attempted to frustrate those obligations, and that he knew his conduct was unlawful.” 20 F.3d at 569 . Smukler urges us to extend Curran’s heightened “willfully” standard to all charges brought under section 2(b) and FECA. But that conflicts with both our precedent and an ordinary interpretation of “willfully.” An overview of our jurisprudence cases sets the stage. Curran relies on the Supreme Court’s opinions in Cheek and Ratzlaf, cases involving federal tax and financial laws. Both are notable for their rarity. Cheek held that a mens rea of “willfully” in the criminal tax statutes 26 U.S.C. §§ 7201 and 7203 required actual knowledge of the relevant legal duty. 498 U.S. at 202–07. The Court reasoned that the “average citizen” often struggles to comply with our nation’s sprawling tax system. Id. at 199–200. From that assumption, the Court intuited that Congress had “softened the impact of the common-law presumption by making specific intent to violate the law an element of certain federal criminal tax offenses.” Id. at 200 . But the Court was quick to acknowledge the “general rule” “deeply rooted in the American legal system”: “[I]gnorance of the law or a mistake of law is no defense to criminal prosecution.” Id. at 199 . A similar conclusion arrived in Ratzlaf, a case involving cash structuring contrary to 31 U.S.C. §§ 5322 (a) and 5324(3). 19 Concerned that these complex provisions might trip up ordinary people, the Court held that establishing “willful” violations of structuring requires the government to prove knowledge that the specific structuring behavior was unlawful. Ratzlaf, 510 U.S. at 141 , 144–46, 149. But as in Cheek, the Court emphasized these circumstances represented the extraordinary instance where ignorance of the law was a defense to a criminal charge. Id. at 149 . We decided Curran shortly after Ratzlaf. Both cases concerned disclosure obligations imposed by regulatory laws. Curran, 20 F.3d at 569 . And both involved prosecution under statutes with a mens rea of “willfully.” See id. at 568 . Given these similarities, we applied the Cheek-Ratzlaf standard to tandem charges brought under 18 U.S.C. §§ 2 (b) and 1001 in the elections context. Id. at 569 . But more recent decisions from the Supreme Court, and ours, clarify that Cheek and Ratzlaf do not sweep further. Rather, they remain the exceptions that prove the rule. Take Bates v. United States, where the Supreme Court considered the meaning of 20 U.S.C. § 1097 (a), which makes it a felony to “knowingly and willfully” misapply student loan funds insured under Title IV of the Higher Education Act of 1965. There, the petitioner urged the Court to find, as in Ratzlaf, that the actual intent to defraud was an essential, although unexpressed, element of the offense. Bates v. United States, 522 U.S. 23 , 30 (1997). But the Court rejected any comparison: “Ratzlaf,” it wrote, turned on the “particular statutory context” of complex currency structuring transactions. Id. at 31 n.6. The Supreme Court was even clearer a year later in Bryan construing the prohibition on interstate transfers of 20 firearms in 18 U.S.C. § 922 (a)(1)(A). The petitioner argued that the Cheek-Ratzlaf standard required the government prove he knew about the federal licensing regime. Bryan, 524 U.S. at 189–90. But the Court distinguished Ratzlaf and Cheek as matters “involv[ing] highly technical statutes that presented the danger of ensnaring individuals engaged in apparently innocent conduct.” Id. at 194 . “[W]illfulness,” the Court admonished, does not “carve out an exception to the traditional rule that ignorance of the law is no excuse.” Id. at 196 . And it reaffirmed that logic in Safeco Ins. Co. of Am. v. Burr, characterizing readings of willfulness that require “specific intent to violate a known legal duty” as, again, applying to “highly technical statutes.” 551 U.S. 47 , 57 n.9 (2007) (citing Cheek, 498 U.S. at 200–01). We have followed the same path. In Starnes, guided by Bryan, we observed that “willfully” has “at least three levels of interpretation.” Starnes, 583 F.3d at 210 . In some contexts, “willfully” may indicate “an act which is intentional, or knowing, or voluntary, as distinguished from accidental.” Id. (internal quotation marks omitted). In others, particularly in the criminal context, it may require the government to prove that the defendant acted “not merely voluntarily, but with a bad purpose, that is, with knowledge that his conduct was, in some general sense, unlawful.” Id. (internal quotation marks omitted). And finally, “in some rare instances,” we observed that “‘willfully’ has been read to require proof that the defendant actually knew of the specific law prohibiting the conduct.” Id. at 211 (emphasis added). But like Bryan, we pointed out that these unusual cases involve only “highly technical statutes” and, in Curran, the unusual instance of a tandem election prosecution brought under 18 U.S.C. §§ 2 (b) and 1001. Id.; accord United States v. Stadtmauer, 620 F.3d 21 238, 256 (3d Cir. 2010) (“The justification for requiring knowledge of the relevant tax laws is that, ‘in our complex tax system, uncertainty often arises even among taxpayers who earnestly wish to follow the law, and it is not the purpose of the law to penalize frank difference[s] of opinion or innocent errors made despite the exercise of reasonable care.’” (alteration in original) (quoting Cheek, 498 U.S. at 205 )). Smukler reaches for the rarest meaning, pushing to extend the extraordinary Cheek-Ratzlaf “willfully” standard not just to the charges brought under 18 U.S.C. §§ 2 (b) and 1001, but to his substantive FECA charges as well. Curran, he maintains, requires as much. It does not. As the Supreme Court and we have repeatedly explained, the Cheek-Ratzlaf interpretation applies to “complex[],” Cheek, 498 U.S. at 200 , or “highly technical,” Bryan, 524 U.S. at 194 , statutes. And Smukler does not specify what about FECA he finds to be “complex” or “highly technical.” He protests its length in a footnote. (See Reply Br. at 4 n.5.) True enough, as FECA packs in rules for contributions (and a host of other conduct) that candidates, campaigns, and contributors must follow when engaging in election politicking. But those rules are reasonably straightforward and written in common terms. One provision sets forth the contribution limits applicable to every congressional candidate in each election cycle. 52 U.S.C. § 30116 . Another makes it unlawful for individuals to contribute in the names of others. Id. § 30122. A third requires honestly reporting contributions received to the FEC. Id. § 30104. Civil and criminal penalties can result from a “knowing[] and willful[]” violation of FECA. Id. § 30109(d). But “compared with anti-structuring or tax laws, as in Ratzlaf or Cheek, individual campaign contribution laws are more intuitive and less complex.” United States v. Danielczyk, 788 22 F. Supp. 2d 472 , 490 (E.D. Va. 2011), reversed in part on other grounds, 683 F.3d 611 (4th Cir. 2012). All of which speaks to an ordinary, not extraordinary, set of prohibitions. Consistent with precedent, we likewise apply the ordinary reading of “willfully” to FECA. 2. Applying Familiar Principles of Interpretation Smukler next suggests that the Cheek-Ratzlaf heightened “willfully” standard is warranted since his FECA offenses follow the “aiding and abetting” prohibitions of 18 U.S.C. § 2 (b). 8 Section 2(b) of Title 18 makes it a crime for a person to “willfully cause[] an act to be done which if directly performed by him . . . would be an offense against the United States.” The statute “imposes liability on a defendant who does not himself commit the prohibited actus reus, but intentionally manipulates an innocent intermediary to commit the prohibited actus reus.” United States v. Gumbs, 283 F.3d 128 , 134 (3d Cir. 2002). As we explained, Curran held that the mens rea element required under § 2(b) for causing a false statement in violation of 18 U.S.C. § 1001 goes beyond the mens rea required by § 1001 and applied the Cheek-Ratzlaf reading of “willfully.” 9 See 20 F.3d at 567–69. Smukler seems to contend 8 The substantive FECA charges alleged in Counts II, VII, VIII, IX, and X all require proof that Smukler acted “willfully.” He was also charged with “willfully caus[ing]” the violations. The Government acknowledges that Smukler did not personally transmit false statements to the FEC, so Counts V, VI, and X require proof that he “willfully cause[d]” those acts under 18 U.S.C. § 2 (b). 9 We have divorced 18 U.S.C. § 1001 from the Cheek- Ratzlaf heightened willfully requirement when not paired with 23 we must do the same for his FECA offenses charged under § 2(b), even if the “willfully” mens rea in his substantive FECA charges would not be so read. (It will not, as we already explained.) § 2(b). In Starnes, we applied 18 U.S.C. § 1001 (a)’s false statements statute to a regulatory scheme that subjected the defendants to criminal liability under the Clean Air Act. There, we noted that Curran, relying on Ratzlaf, “held that the strictest interpretation of criminal willfulness governed tandem violations of §§ 1001 and 2(b) in the ‘federal election law context.’” Starnes, 583 F.3d at 211 . But since that case involved neither § 2(b) nor election law, Curran’s heightened standard did not apply. Instead, we held that § 1001’s “knowingly and willfully” requirement meant that the government must only show that “a defendant acted deliberately and with knowledge that the representation was false.” Id. (quoting Curran, 20 F.3d at 567 ). That result, we wrote, “comports with the generally understood meaning of ‘knowingly’ and with the intermediate level of interpretation of ‘willfully’ articulated by the Supreme Court in Bryan—that is, knowledge of the general unlawfulness of the conduct at issue—which we believe adequately demarcates the boundary between innocent and unlawful conduct in this context.” Id. at 211–12 (citing Bryan, 524 U.S. at 195 & n. 23). And we rejected the suggestion that a mens rea of “knowingly and willfully” required “the government . . . to prove that [the defendant] actually knew of [the law allegedly violated].” Id. at 212 . So too here. See, e.g., 52 U.S.C. § 30109 (d)(1)(A) (FECA penalty provision with mens rea of “knowingly and willfully”). 24  We have declined that approach in other prosecutions under 18 U.S.C. § 2 (b). For example, in Gumbs, we considered a tandem prosecution brought under 18 U.S.C. §§ 2 (b) and 287. There, we clarified Curran, explaining that “in a prosecution under [18 U.S.C.] § 2(b), the government must show the following mens rea elements: (1) that the defendant had the mens rea required by the underlying statute; and (2) that the defendant willfully caused the innocent intermediary to commit the act prohibited by the underlying statute.” Gumbs, 283 F.3d at 135 . In other words, § 2(b) does not automatically alter the “most natural interpretation” of “willfully.” United States v. Gabriel, 125 F.3d 89 , 101 (2d Cir. 1997) (“The most natural interpretation of section 2(b) is that a defendant with the mental state necessary to violate the underlying section is guilty of violating that section if he intentionally causes another to commit the requisite act.” (emphasis omitted)); see also United States v. Hsia, 176 F.3d 517 , 522 (D.C. Cir. 1999) (“The natural reading of §§ 2(b) and 1001 is this: the government may show mens rea simply by proof (1) that the defendant knew that the statements to be made were false (the mens rea for the underlying offense—§ 1001) and (2) that the defendant intentionally caused such statements to be made by another (the additional mens rea for § 2(b)).”). Under Smukler’s approach, we would apply the Cheek- Ratzlaf heightened standard of “willfully” to FECA offenses when paired with an aiding and abetting charge. No matter, he says, that this would require us to apply different meanings to the same word in the same statute. But our interpretive kit includes no such tool. Rather, it is a fundamental interpretive norm that “[a] term appearing in several places in a statutory text is generally read the same way each time it appears.” 25 Ratzlaf, 510 U.S. at 143 . 10 “[W]hether section 2(b) require[s] a knowing violation of the law” cannot “turn on the context in which the statement was made.” Gabriel, 125 F.3d at 101 . “Moreover, if a defendant was prosecuted under section 2(b) and a criminal section other than section 1001,” as here, “whether section 2(b) required a knowing violation of the law would turn not only on the nature of the other section but also on the context of the alleged violation of that section.” Id. As the Second Circuit hypothesized, “[a]side from the obvious interpretative difficulties that this approach would take,” giving “willfully” a malleable interpretation under § 2(b) would make it dependent on the context of the underlying statute. Id. So “however ‘willfully’ is to be interpreted under section 2(b), it should be interpreted consistently.” Id. We agree. As a result, we decline Smukler’s invitation to “open Pandora’s jar,” by “reading [‘willfully’] differently for each code section to which it applies.” Ratzlaf, 510 U.S. at 143 . The District Court’s instructions to the jury were therefore proper. 10 We note that while Curran tethers its approach to Ratzlaf, other courts have disagreed. See Hsia, 176 F.3d at 522 (noting that Curran “extends Ratzlaf too far”); see also Gabriel, 125 F.3d at 101 (concluding Curran “focused its attention almost exclusively on the federal election laws and explicitly limited its decision to ‘cases brought under sections 2(b) and 1001 in the federal election law context’—indicating that in other contexts, the court might interpret section 2(b)’s ‘willfully’ requirement differently” (quoting Curran, 20 F.3d at 569 )). 26 B. Smukler’s Convictions at Counts V and VI Contravene Curran Counts V and VI charged Smukler with violating 18 U.S.C. §§ 2 and 1001(a)(1) by causing the false statements of others within the Brady and Margolies campaigns. On these counts, the District Court’s instruction on “willfully” missed the mark established by Curran. As we explained, under Curran, “a proper charge for willfulness in cases brought under [18 U.S.C. §§] 2(b) and 1001 in the federal election law context requires the prosecution to prove that defendant knew of the [statutory] obligations, that he attempted to frustrate those obligations, and that he knew his conduct was unlawful.” 20 F.3d at 569 ; see also Starnes, 583 F.3d at 211 (noting Curran “held that the strictest interpretation of criminal willfulness governed tandem violations of §§ 1001 and 2(b) in the federal election law context” (internal quotation marks omitted)). Counts V and VI charged Smukler with such “tandem” violations of §§ 1001 and 2(b). The supporting allegations center on Smukler’s actions during the Brady and Margolies campaigns, so they occurred “in the federal election law context.” Curran, 20 F.3d at 569 . While Curran’s “federal election law context” modification is too broad in other scenarios, it does apply to these counts. The Government brings two arguments in rebuttal, but neither prevails. First, that Bryan abrogated Curran. It did not, as the Supreme Court limited its holding. See Bryan, 524 U.S. at 199–200 (“[O]ur grant of certiorari was limited to the narrow legal question whether knowledge of the licensing requirement [of 18 U.S.C. § 924 (a)(1)(D)] is an essential element of the offense.”). So we must follow the narrow holding in Curran. 27 Second, even if the District Court erred, any error was harmless. Not so. For error to be harmless, we must “conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error.” Neder v. United States, 527 U.S. 1 , 19 (1999). “When the error involves a mens rea instruction, ‘[a] verdict may still stand, despite erroneous jury instructions, where the predicate facts conclusively establish [mens rea], so that no rational jury could find that the defendant committed the relevant criminal act’ without also finding the requisite mens rea.” United States v. Elonis, 841 F.3d 589 , 598 (3d Cir. 2016) (alterations in original) (quoting Whitney v. Horn, 280 F.3d 240 , 260 (3d Cir. 2002)). Based on our holding in Curran, the District Court’s instructions did not provide the proper guidance. The jury needed to consider Smukler’s culpability based on the heightened “willfully” standard—that Smukler knew the legal duty of the particular laws charged. After reviewing the record, we cannot conclude that “no reasonable jury could find that th[is] element was not present.” United States v. Andrews, 681 F.3d 509 , 527 (3d Cir. 2012). So we will vacate Smukler’s conviction on these counts. IV. SMUKLER’S OTHER CHALLENGES LACK MERIT Smukler brings three remaining challenges to his convictions. First, he argues that the District Court erred by not finding a portion of Count II outside the statute of limitations. Second, he attacks the sufficiency of the evidence produced on Count V. Finally, he sees error in the District Court’s failure to give specific unanimity charges to the jury on Counts V and X. We have already held that Smukler’s conviction at Count V will be vacated because of the faulty jury instruction on “willfully,” so we need not reach his other arguments on that 28 count. As to Smukler’s other challenges, we find no error and will affirm. A. The District Court Did Not Err in Rejecting Smukler’s Motion to Dismiss Count II Count II of the superseding indictment charged Smukler with violating 52 U.S.C. §§ 30109 (d)(1)(A)(i) and 30116, by knowingly and willfully causing the Brady campaign to make contributions to the Moore campaign in excess of the limits of FECA, at an aggregated amount of $25,000 or more. 11 Recall the basis: the three payments Smukler steered from the Brady campaign to the Moore campaign. The first, a June 11, 2012 payment of $40,000 routed through VDS, a Smukler-owned consulting company. The second, a July 10, 2012 payment of $25,000 sent through VDS. And the third, an August 23, 2012 payment of $25,000 from Smukler’s associate Jones to Cavaness. Smukler argues two of the three contributions fell outside the statute of limitations. We disagree. Since the last of the three payments occurred on August 23, 2012 and the grand jury did not indict Smukler until October 24, 2017, the indictment would ordinarily be outside FECA’s five-year statute of limitations. See 52 U.S.C. § 30145 . But before the statute of limitations ran on the August 11 FECA makes it a crime to “knowingly and willfully commit[] a violation” that “involves the making . . . of any contribution . . . aggregating $25,000 or more during a calendar year.” 52 U.S.C. § 30109 (d)(1)(A)(i). Section 30116 sets the limit on contributions to a political campaign at $2,000 per election, adjusted for inflation. For the 2012 election cycle, the contribution limit was $2,500 per election. 29 2012 payment, Smukler signed a tolling agreement. 12 The agreement, executed on August 21, 2017 and extended on September 25, 2017, moved the deadline for charges out to October 26, 2017. The first indictment was returned before the expiration of the extended tolling agreement and, citing Dees, the District Court found all three payments within the statute of limitations. We agree with that analysis. In Dees, the defendant was charged with violating 18 U.S.C. § 1029 (a)(2), making it a crime to use “unauthorized access devices”—there credit cards—to “obtain[] anything of value aggregating $1,000 or more” during “any one-year 12 The August tolling agreement states that Smukler agrees to toll any applicable statute of limitations about: charges arising out of a payment from the Bob Brady for Congress campaign committee on or about August 23, 2012 to D. Jones & Associates in the amount of $25,000 and the subsequent use of that money by D. Jones & Associates[,] from August 23, 2017 to September 26, 2017. (App. at 133.) In paragraph six of the agreement, Smukler acknowledges that he “understand[s] that by agreeing to toll, and thus not to assert, the claim of statute of limitations, [he is] giving up any rights [he] may have under the federal statute of limitations provisions regarding charges that may result from the investigation described in this document for which the limitations period expires on or about August 23, 2017.” (App. at 134.) 30 period.” 215 F.3d at 379 (quoting 18 U.S.C. § 1029 (a)(2)). Dees used credit cards to make three fraudulent purchases, only one of which occurred within the limitations period. Id. We held that because the third purchase fell within five years of the indictment, “the offense as actually charged was completed on . . . the date of the last purchase” and so “the statute of limitations started running at that time.” Id. at 380 . “[I]nasmuch as the offense is defined as activity ‘during any one-year period,’” we explained, “the offense is complete as to any one-year period when there is or are unauthorized uses of access devices, and the aggregated value of things obtained through the use of those access devices within the one-year period ending on its last day equaled or exceeded $1,000.” Id. The enforcement provision of FECA, 52 U.S.C. § 30109 , is worded similarly to the statute considered in Dees, and likewise provides for aggregation during a one-year period. 13 For that reason, the District Court held that “Dees 13 Compare 52 U.S.C. § 30109 (d)(1)(A)(i) (“Any person who knowingly and willfully commits a violation of any provision of this Act which involves the making, receiving, or reporting of any contribution, donation, or expenditure . . . aggregating $25,000 or more during a calendar year shall be fined under Title 18, or imprisoned for not more than 5 years, or both[.]”) with 18 U.S.C. § 1029 (a)(2) (“Whoever . . . knowingly and with intent to defraud traffics in or uses one or more unauthorized access devices during any one-year period, and by such conduct obtains anything of value aggregating $1,000 or more during that period . . . shall, if the offense affects interstate or foreign commerce, be punished . . . .”). 31 governs this case and that ‘inasmuch as the offense is defined as activity during any one-year period the offense is complete as to any one-year period’ on the date of the last contribution identified in the calendar year 2012.” (App. at 25 (quoting Dees, 215 F.3d at 380 ).) So “[t]he Government properly charged that defendant and his co-conspirators caused payments aggregating at least $25,000 in a calendar year, between June 2012 and August 2012.” (App. at 25.) Smukler disagrees and argues that he only agreed to toll the August 2012 payment, not the two earlier ones. In other words, he “did not agree to toll the statute as to any charges ‘arising out of’ the totality of payments in the same calendar year in which the August 2012 payment was made.” (Opening Br. at 32.) Since each of the three payments would have independently sufficed to support a felony charge under FECA as each totaled $25,000 or more, the earlier payments would not “hav[e] [their] origins in, the third payment.” (Opening Br. at 32.) This interpretation, he contends, is “the better plain- language understanding of the agreement.” (Opening Br. at 33.) We begin with the self-evident: “the language of a contract . . . matters greatly.” United States v. Goodson, 544 F.3d 529 , 535 (3d Cir. 2008). Yet Smukler advocates for an unnaturally narrow reading of his agreement. First, “arising out of” is a broad provision. See Fed. Ins. Co. v. Tri-State Ins. Co., 157 F.3d 800 , 804 (10th Cir. 1998) (noting “the general consensus that the phrase ‘arising out of’ should be given a broad reading such as ‘originating from’ or ‘growing out of’ or ‘flowing from’ or ‘done in connection with’”) (citing cases); see also In re Remicade (Direct Purchaser) Antitrust Litig., 938 F.3d 515 , 523 (3d Cir. 2019) (explaining “arising out of . . . in a contract” is “indicative of an extremely broad agreement” 32 (cleaned up)); In re Prudential Ins. Co. of Am. Sales Practice Litig. All Agent Actions, 133 F.3d 225 , 232 (3d Cir. 1998) (use of “arising out of” shows broad drafting). Second, the agreement put Smukler on fair notice of possible charges under 52 U.S.C. § 30109 , which includes an aggregating provision during a calendar year for campaign contribution violations. Third, Smukler elsewhere agreed that “[n]othing . . . limit[s] the ability of the United States to bring criminal charges prior to the expiration of th[e] tolling agreement,” and that he waived all rights under the applicable statute of limitations “regarding charges that may result from the investigation described in th[e] document.” (App. at 138.) Smukler tries to distinguish Dees, asserting that because each of the three payments was for “$25,000 or more,” each independently sufficed to support a felony charge on the Government’s theory under 52 U.S.C. § 30109 (d)(1)(A). While true, nothing in the statute suggests that the Government had to indict Smukler on separate charges. Reading the statute in that way would render “aggregating” surplusage. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174 (2012) (“If possible, every word . . . is to be given effect[.]”). And no normal reading of the statute would permit aggregation if one of the payments had been only $24,999, but not when all were for $25,000 or more. For these reasons, while the agreement only references the August 23, 2012 payment, the potential charges emanating from that payment are not similarly limited. Whether Smukler assumed a narrower reading is not relevant, as our role is to “focus not on intent, but on words.” United States v. Damon, 933 F.3d 269 , 273 (3d Cir. 2019). We will therefore affirm this count of conviction. 33 B. The Jury Instructions at Count X Were Not Plainly Erroneous Smukler also claims that the lack of a specific unanimity instruction on the false statement charges in Counts V and X violated his Sixth Amendment right to a unanimous verdict. The parties agree we review for plain error because Smukler failed to raise this issue at trial. Under Federal Rule of Criminal Procedure 52(b) “we must decide whether (1) an error occurred, (2) the error is ‘plain,’ and (3) it ‘affect[s] substantial rights.’” United States v. Payano, 930 F.3d 186 , 192 (3d Cir. 2019) (quoting United States v. Olano, 507 U.S. 725 , 732 (1993) (alteration in original)). Meeting all three conditions allows a court discretion to correct a “particularly egregious” error, United States v. Frady, 456 U.S. 152 , 163 (1982), if the error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings,” Olano, 507 U.S. at 736 (alteration in original) (quoting United States v. Atkinson, 297 U.S. 157 , 160 (1936)). Because we have already determined that Smukler’s conviction at Count V must be vacated, we will only review Count X. Under the Sixth Amendment, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” U.S. Const. amend. VI. It is “unmistakable” that the Framers and Ratifiers of our Constitution understood “trial by an impartial jury” to mean that “[a] jury must reach a unanimous verdict in order to convict.” Ramos v. Louisiana, 140 S. Ct. 1390 , 1395 (2020) (explaining that juror unanimity stretches back to 14th century England, where it was “accepted as a vital right protected by 34 the common law”); see also United States v. Yeaman, 194 F.3d 442 , 453 (3d Cir. 1999) (“It is well settled that a defendant in a federal criminal trial has a constitutional right to a unanimous verdict.”). The right to a unanimous verdict “includes the right to have the jury instructed that in order to convict, it must reach unanimous agreement on each element of the offense charged.” Gonzalez, 905 F.3d at 183 (quoting Yeaman, 194 F.3d at 453 ). Such an instruction is known as the “general unanimity instruction.” United States v. Beros, 833 F.2d 455 , 460 (3d Cir. 1987). “Typically, when an indictment alleges a number of different factual bases for the defendants’ criminal liability, the general unanimity instruction ensures that the jury unanimously agrees on the factual basis for a conviction.” Gonzalez, 905 F.2d at 183. But when “a statute enumerates alternative routes for its violation, it may be less clear . . . whether these are mere means of committing a single offense (for which unanimity is not required) or whether these are independent elements of the crime (for which unanimity is required).” Id. (alteration in original) (quoting Yeaman, 94 F.3d at 453). And so, in some cases, a “general unanimity instruction” is not sufficient, and “a more specific unanimity instruction” is necessary. Id. (citing Beros, 833 F.2d at 460 ). But “a specific unanimity instruction is the exception to the ‘routine case,’” United States v. Cusumano, 943 F.2d 305 , 312 (3d Cir. 1991), only applicable when “complexity . . . or other factors, creates the potential that the jury will be confused,” Beros, 833 F.3d at 460. In most, “even where an indictment alleges numerous factual bases for criminal liability,” “a ‘general unanimity instruction will ensure that the jury is unanimous on the factual basis for a conviction.’” 35 Gonzalez, 905 F.3d at 184 (quoting Cusumano, 943 F.2d at 312 ). Count X charged Smukler with: [W]illfully caus[ing] the authorized campaign committee of a candidate for the United States House of Representatives to falsely report to the FEC contributions received by that committee over $200, to wit causing Candidate C 2014 to report to the FEC payments from Black and Blue and InfoVoter as refunds when in fact those payments were unlawful contributions routed through those companies aggregating $25,000 and more in calendar year 2014, and causing Candidate C 2014 to report contributions from SMUKLER in the names of others. 14 (App. at 123.) Because Smukler did not request a specific unanimity instruction, the Court charged the jury on general unanimity: I want to remind you that your verdict, whether it is guilty or not guilty, must be unanimous. To find the defendant guilty of an offense, every one of you must agree that the Government has overcome the presumption of innocence with evidence that proves each element of that offense beyond a reasonable doubt. To find the 14 In violation of 52 U.S.C. §§ 30104 (a)(1), 30104(b)(5)(A), 30109(d)(1)(A)(i), and 18 U.S.C. § 2 . 36  defendant not guilty, every one of you must agree that the Government has failed to convince you beyond a reasonable doubt. (App. at 1954:9–16.) This is not error, let alone plain error, as Smukler again asks us to apply an extraordinary standard to an unextraordinary case. As we explained, neither FECA, nor the facts offered by the Government, are so complex as to risk jury confusion. It is also not plain that the charge depended, as Smukler contends, on “a composite theory of guilt.” Beros, 833 F.2d at 462 . This theory, which we explained in Beros, “applies where the Government advances different factual theories concerning the defendant[’s] charged conduct, each of which could independently satisfy the elements of the crime.” Gonzalez, 905 F.3d at 184. In Beros, the government proceeded with a sixteen-count indictment, with two of the counts “alleg[ing] four separate and distinct theories of criminal activity” and “enumerat[ing] several acts upon which a finding of guilt could be predicated.” 833 F.2d at 461 . Concerned by the disjunctive nature of the charging statutes and the multiple, factually distinct allegations of criminal conduct, we could “easily imagine” juror disagreement. Id. For example, four of the jurors might have focused on Beros’s improper use of a credit card, another four on his unapproved hotel upgrades, and the final four on his turning a business trip into a personal vacation. See id. at 461–62. So, we held that “[w]hen the government chooses to prosecute under an indictment advancing multiple theories, it must prove beyond a reasonable doubt at least one of the theories to the satisfaction of the entire jury.” Id. at 462 . 37  Here, however, the Government advances only a single theory of liability. Count X charges Smukler with multiple FECA offenses, but at least arguably under a single factual basis: that Smukler caused the Margolies campaign to make false reports to the FEC. Those falsities violated FECA’s prohibition against (1) improperly reporting that the “refunds” from Black and Blue Media and InfoVoter were, in fact, lawful contributions; and (2) improperly reporting contributions from individuals which were, in fact, contributions made by Smukler. And even assuming this satisfies Olano’s first and second prongs—that there was an error, and the error was plain—Smukler cannot show that the error “affected the outcome of the district court proceedings.” Payano, 930 F.3d at 192 (alteration in original) (quoting Olano, 507 U.S. at 734 ). At Counts VII and VIII the jury found Smukler guilty of violating the underlying FECA provisions that Count X charged him with causing the Margolies campaign to falsely report. There is overwhelming evidence in the record that Smukler duped the campaign into assuming the legitimacy of these contributions. The mere fact that the jury found that Smukler concealed the true nature of these contributions in Counts VII and VIII is likely enough to satisfy Count X’s charge. 15 While Smukler bears the burden on appeal, he 15 For instance, recall that Jones testified that his contribution to the Margolies campaign depended on Smukler reimbursing him, which Smukler did by sending Jones a check from InfoVoter. And Smukler, as head of the campaign, instructed Margolies’ campaign treasurer that the contributions made from Black and Blue Media and InfoVoter were, in fact, “refunds.” 38 provides no showing for how a specific unanimity charge would “have affected the outcome of the district court proceedings.” Payano, 930 F.3d at 192 (quoting Olano, 507 U.S. at 734 ). In short, Smukler has far from satisfied the exacting standard of plain error review. V. CONCLUSION For these reasons, we will vacate the judgment of conviction at Counts V and VI, and we will affirm all other counts of Smukler’s conviction. 39

2020-12-01 13:01:48.513914+00

http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/1%20CA-CV%2020-0150%20-%20Risas%20Holdings.pdf

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE RISAS HOLDINGS LLC, et al., Plaintiffs/Appellees, v. BRANDON TACKETT, et al., Defendants/Appellants. No. 1 CA-CV 20-0150 FILED 12-1-2020 Appeal from the Superior Court in Maricopa County No. CV2016-001841 The Honorable Christopher T. Whitten, Judge AFFIRMED COUNSEL Osborn Maledon, P.A., Phoenix By Scott W. Rodgers, Kristin L. Windtberg, Eric M. Fraser Counsel for Plaintiffs/Appellees Galbut Beabeau, P.C., Scottsdale By Olivier A. Beabeau, Keith R. Galbut, Grant H. Frazier Counsel for Defendants/Appellants  RISAS HOLDINGS, et al. v. TACKETT, et al. Decision of the Court MEMORANDUM DECISION Acting Presiding Judge Lawrence F. Winthrop delivered the decision of the Court, in which Chief Judge Peter B. Swann and Judge Maurice Portley1 joined. W I N T H R O P, Judge: ¶1 Brandon and Catherine Tackett (“the Tacketts”) appeal the superior court’s denial of attorneys’ fees and costs following resolution of multi-count litigation with Risas Dental Management, LLC, and Risas Holdings, LLC (collectively, “Risas”). The Tacketts argue the trial court erred in denying their request for attorneys’ fees and costs based on a contractual agreement between the parties and based on Arizona Revised Statutes (“A.R.S.”) sections 12-341, -341.01. The Tacketts also contend the court erred in failing to grant attorneys’ fees for defending a trade secret claim pursuant to A.R.S. § 44-404(3). For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Risas Holdings, LLC, owns and manages Risas Dental Management, LLC, which operates dental offices in Arizona and Colorado. Risas hired Brandon Tackett (”Tackett”) as a support center director in 2013, and he transitioned into the role of marketing director in early 2015. ¶3 In connection with his employment, Tackett signed an Employee Confidentiality and Non-Solicitation Agreement (the “Confidentiality Agreement”). The Confidentiality Agreement prohibited Tackett from disclosing or using certain confidential company information or trade secrets during and after his employment with Risas. It also restricted Tackett’s ability to solicit Risas’ employees for two years after Tackett ended his employment with Risas. In addition, Tackett signed a Stock Participation Agreement, which included additional confidentiality provisions (the “Participant Agreement”). 1 The Honorable Maurice Portley, Retired Judge of the Court of Appeals, Division One, has been authorized to sit in this matter pursuant to Article 6, Section 3, of the Arizona Constitution. 2  RISAS HOLDINGS, et al. v. TACKETT, et al. Decision of the Court ¶4 Tackett gave Risas notice of his resignation in early 2016. A few weeks later, Tackett formed Somos Dental, LLC, and Somos Dental Services, LLC, (collectively, “Somos”) to provide dental management and consulting services. ¶5 Risas subsequently filed suit against Tackett, seeking monetary damages and a temporary restraining order, as well as preliminary and permanent injunctions, to prevent Tackett from competing with Risas or using Risas’ confidential information and intellectual property. An amended complaint later joined Tackett’s wife, Catherine, and Somos as defendants (collectively, the “Defendants”). The amended complaint alleged seven counts against the Tacketts and/or Somos: (1) Breach of the Confidentiality Agreement; (2) Violation of Arizona’s Uniform Trade Secrets Act; (3) Breach of Fiduciary Duty; (4) Preliminary and Permanent Injunction; (5) Unfair Competition; (6) Aiding and Abetting; and (7) Breach of the Participant Agreement. ¶6 In May 2016, the parties entered a Consent Decree enjoining Tackett from using Risas’ confidential information for five years from the date of his termination and from soliciting any of Risas’ employees for two years from his termination. Although limited in scope, entry of this decree provided Risas the core relief it sought in Count 4 of its complaint. The court subsequently granted Defendants’ motion for summary judgment on all remaining counts of Risas’ complaint, except for Count 3, the claim for Breach of Fiduciary Duty. The parties later stipulated to a monetary judgment of $80,601.43 in favor of Risas to resolve the fiduciary duty claim. ¶7 Defendants filed an application for attorneys’ fees and costs and Risas filed an application for costs. After reviewing the parties’ memoranda, the court denied Defendants’ request for fees and costs, and awarded Risas its costs in the amount of $12,170.85. The court reasoned that, based on the totality of the litigation, Risas was the prevailing party because it obtained the injunctive relief it sought and obtained “the only money that changed hands.” ¶8 Defendants filed a motion for reconsideration on the issue of costs and fees, which the court denied. The court entered final judgment on the matter, affirming the injunctive relief covered by the Consent Decree, entering judgment for $80,601.43 in favor of Risas on the fiduciary duty claim, entering judgment for Defendants on the remaining counts, and awarding Risas its taxable costs. 3  RISAS HOLDINGS, et al. v. TACKETT, et al. Decision of the Court ¶9 The Tacketts timely appealed the final judgment to this Court. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1). ANALYSIS I. Attorneys’ Fees and Costs Pursuant to the Confidentiality Agreement and A.R.S. §§ 12-341, -341.01 ¶10 The Confidentiality Agreement mandates that if “any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, costs, and necessary disbursements.” Similarly, A.R.S. § 12-341.01 provides that “[i]n any contested action arising out of a contract, express or implied, the court may award the successful party reasonable attorney fees.” Also, “[t]he successful party to a civil action shall recover from his adversary all costs expended or incurred therein.” A.R.S. § 12-341. ¶11 The Tacketts contend that because they obtained summary judgment on every claim seeking enforcement of the Confidentiality Agreement, they are entitled to attorneys’ fees and costs for litigation of those contract-related claims through the summary judgment phase pursuant to the attorneys’ fees clause in the Confidentiality Agreement and A.R.S. §§ 12-341, -341.01. They argue the trial court had no reasonable basis to conclude Risas was the “prevailing party” under the contract because Risas only secured a favorable judgment on the fiduciary duty claim, which is a tort claim that did not depend on or arise out of the Confidentiality Agreement. ¶12 We review de novo the application and interpretation of a contractual provision for attorneys’ fees and costs. Murphy Farrell Dev., LLLP v. Sourant, 229 Ariz. 124 , 133, ¶ 31 (App. 2012). We also review de novo the application and interpretation of A.R.S. § 12-341.01. Modular Mining Sys., Inc. v. Jigsaw Tech., Inc., 221 Ariz. 515 , 521, ¶ 21 (App. 2009). ¶13 The trial court has discretion whether to award attorneys’ fees under A.R.S. § 12-341.01; but, “[u]nlike fees awarded under A.R.S. § 12- 341.01(A), the court lacks discretion to refuse to award fees under [a] contractual provision.” McDowell Mountain Ranch Cmty. Ass’n, Inc. v. Simons, 216 Ariz. 266 , 269, ¶ 14 (App. 2007) (internal quotations omitted); accord Bennett v. Appaloosa Horse Club, 201 Ariz. 372 , 378, ¶ 26 (App. 2001) (“The awarding of attorneys’ fees to a prevailing party pursuant to a contract between the parties is mandatory.”). 4  RISAS HOLDINGS, et al. v. TACKETT, et al. Decision of the Court ¶14 But whether pursuant to A.R.S. § 12-341.01 or an attorneys’ fees clause in a contract, the determination of which party is the “successful” or “prevailing” party for the purposes of awarding attorneys’ fees remains within the discretion of the trial court and will not be disturbed on appeal if any reasonable basis for it exists. See Sanborn v. Brooker & Wake Prop. Mgmt., Inc., 178 Ariz. 425 , 430 (App. 1994); Bobrow v. Bobrow, 241 Ariz. 592 , 598, ¶ 25 (App. 2017); see also Assyia v. State Farm Mut. Auto. Ins. Co., 229 Ariz. 216 , 223, ¶ 32 (App. 2012) (noting the superior court has “substantial discretion” in determining who is the successful party for the purposes of costs). Accordingly, we need only consider whether any reasonable basis exists for the court’s determination that Risas was the prevailing party. ¶15 Looking at the totality of the litigation, including the outcomes of the claims arising out of the Confidentiality Agreement, we cannot say the superior court abused its discretion. Although the court’s April 17, 2018 minute entry granted Defendants’ motion for summary judgment on all counts except Count 3 (Breach of Fiduciary Duty), the court’s final judgment correctly notes Count 4 was resolved by the Consent Decree entered prior to the summary judgment ruling. The basis for the Consent Decree was the Confidentiality Agreement and the decree granted Risas injunctive relief according to the scope of the Confidentiality Agreement with regard to the use of confidential information and solicitation of employees. Prior case law makes clear that in determining who is the “prevailing party” for the purposes of fees, “court-ordered consent decrees create the material alteration of the legal relationship of the parties necessary to permit an award of attorney’s fees.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Hum. Res., 532 U.S. 598 , 604 (2001) (internal quotations omitted). This is true even if the consent decree does not include an admission of liability. Id. Moreover, a claim need not be adjudicated on the merits to warrant an award of fees. Fulton Homes Corp. v. BBP Concrete, 214 Ariz. 566 , 572, ¶ 24 (App. 2007). ¶16 The superior court’s later grant of summary judgment does not negate the enforceable injunctive relief Risas sought in its amended complaint and obtained through the Consent Decree.2 Similarly, the 2 The Tacketts assert that the Consent Decree was no more than an “ephemeral” “initial victory” that was insufficient to make Risas the “prevailing party,” citing Sole v. Wyner, 551 U.S. 74 , 86 (2007) (“[A] plaintiff who gains a preliminary injunction does not qualify for an award of counsel fees under § 1988(b) if the merits of the case are ultimately decided against 5  RISAS HOLDINGS, et al. v. TACKETT, et al. Decision of the Court injunctive relief obtained by Risas is not made meaningless by the fact that Risas continued to seek more expansive injunctive relief after entering the Consent Decree. See Lee v. ING Inv. Mgmt., LLC, 240 Ariz. 158 , 161, ¶ 10 (App. 2016) (“Partial success does not preclude a party from ‘prevailing’ and receiving a discretionary award of attorneys’ fees; the superior court may find that a party is the successful party even when the recovery it obtains is significantly reduced.” (internal quotations omitted)). As such, there was a reasonable basis for the court to determine Risas was the prevailing party for the purposes of defeating Defendants’ claim for attorneys’ fees and costs and awarding Risas its taxable costs. Accordingly, the court did not abuse its discretion. II. Attorneys’ Fees Pursuant to A.R.S. § 44-404(3) ¶17 With respect to Count 2, the trade secrets claim, A.R.S. § 44- 404 provides an attorneys’ fee award is permissible under the following circumstances: The court may award reasonable attorney fees to the prevailing party for any of the following: 1. A claim of misappropriation made in bad faith. 2. A motion to terminate an injunction made or resisted in bad faith. 3. Willful and malicious appropriation. ¶18 The Tacketts argue they should have been granted attorneys’ fees pursuant to A.R.S. § 44-404(3) because they successfully defended against Risas’ trade secrets claim, which alleged Tackett had committed “willful and malicious appropriation.” In opposing that argument, Risas contends § 44-404(3) does not apply to a defendant seeking fees, arguing instead that only a plaintiff who prevails on a claim of willful and malicious misappropriation may recover fees under the subsection. ¶19 We review de novo the application and interpretation of A.R.S. § 44-404. See Sedona Grand, LLC v. City of Sedona, 229 Ariz. 37 , 40, ¶ 8 (App. 2012). To date, no Arizona state court case has explicitly addressed whether her.”). Yet Risas obtained more than an “initial victory” of a preliminary injunction; rather, it obtained an enforceable permanent injunction for the full period of time applicable under the Confidentiality Agreement. 6  RISAS HOLDINGS, et al. v. TACKETT, et al. Decision of the Court a defendant who successfully defends a claim of willful and malicious appropriation of a trade secret can recover fees under § 44-404(3). But the language of the statute allowing an award of fees “to the prevailing party for any of the following . . .” leads us to agree with the Tacketts’ interpretation that a party who successfully defends against a claim of willful and malicious appropriation is the prevailing party for the purposes of the court considering an award of attorneys’ fees pursuant to § 44-404(3). (Emphasis added); see Sempre Ltd. P’ship v. Maricopa Cnty., 225 Ariz. 106 , 108, ¶ 5 (App. 2010) (“We first look to the plain language of the statutes as the most reliable indicator of their meaning.”). ¶20 This interpretation is consistent with our application and interpretation of other permissive statutory fee provisions. For example, A.R.S. § 12-341.01 allows an award of attorneys’ fees to the successful party in an action “arising out of a contract.” But under that statute, attorneys’ fees may be awarded to the “successful party” who proves the absence of the contract sued upon by the opposing party. See Rudinsky v. Harris, 231 Ariz. 95 , 101, ¶ 27 (App. 2012) (“Even when a contract is alleged by a plaintiff and the defendant successfully proves that there was no contract, the action is considered to have arisen out of contract for purposes of A.R.S. § 12-341.01.”); Nolan v. Starlight Pines Homeowners Ass’n, 216 Ariz. 482 , 490, ¶ 36 (App. 2007) (“[A] court may award fees to a defendant [pursuant to A.R.S. § 12-341.01] if the defendant prevails on the basis that there is no contract or there has been no breach of the contract.”); Rogus v. Lords, 166 Ariz. 600 , 604 (App. 1991) (“[A] prevailing party is entitled to its fees under § 12-341.01 when sued on a contract even if the judgment is based on the absence of any contract.”). ¶21 Although a party who successfully defends a trade secret claim for willful and malicious appropriation may qualify for an award of fees pursuant to A.R.S. § 44-404(3), we reiterate that the decision to award fees under a permissive fees statute, as well as the amount of any fees awarded, is discretionary with the court. See Hall v. Read Dev., Inc., 229 Ariz. 277 , 279, ¶¶ 7-8 (App. 2012). Here, the trial court considered the Tacketts’ arguments regarding fees pursuant to A.R.S. § 44-404(3) in both Defendants’ original application for attorneys’ fees and Defendants’ motion for reconsideration. As is proper in cases involving multiple claims and varied success, the superior court employed a “totality of the litigation” analysis and considered the outcome of all claims in making its 7  RISAS HOLDINGS, et al. v. TACKETT, et al. Decision of the Court determination of fees and costs.3 See Berry v. 352 E. Va., L.L.C., 228 Ariz. 9 , 13-14, ¶¶ 22-23 (App. 2011). We find no abuse of discretion in the trial court’s conclusion that the balance of success rested with Risas, nor with the court’s resulting denial of Defendants’ request for an award of attorneys’ fees and costs. CONCLUSION ¶22 For the foregoing reasons, we affirm both the superior court’s grant of costs to Risas in the amount of $12,170.85 and the court’s denial of attorneys’ fees and costs to the Defendants. We deny the Tacketts’ request for attorneys’ fees on appeal. AMY M. WOOD • Clerk of the Court FILED: AA 3 The Tacketts argue that the monetary award to Risas should not have been considered under the “totality of the litigation” analysis because, as a tort claim not arising out of the contract, the breach of fiduciary duty claim was not eligible for an award of fees. Although determining which claims are fee-eligible is necessary to assess the amount of fees available to a prevailing party, the court need not consider only fee-eligible claims when evaluating which party prevailed in the “totality of the litigation” for the purposes of an award of attorneys’ fees. See Ariz. Biltmore Hotel Villas Condos. Ass’n v. Conlon Grp. Ariz., LLC, 249 Ariz. 326 , 334, ¶ 40 (App. 2020) (accepting a “totality of the litigation” analysis in a case involving varied success on both fee-eligible and non-fee-eligible claims). 8

2015-10-07 15:02:27.359519+00

http://www.courts.ca.gov/opinions/nonpub/F071108.PDF

Filed 10/6/15 In re J.A. CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT In re J.A. et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN F071108 SERVICES, (Super. Ct. Nos. JD131580-00, Plaintiff and Respondent, JD131581-00) v. OPINION ERICA P., Defendant and Appellant. THE COURT* APPEAL from an order of the Superior Court of Kern County. Louie L. Vega, Judge. Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant. Theresa A. Goldner, County Counsel, and Jennifer E. Feige, Deputy County Counsel, for Plaintiff and Respondent. -ooOoo- * Before Kane, Acting P. J., Poochigian, J. and Franson, J.  Erica P. (mother) appeals from the juvenile court’s order summarily denying her petition for modification under Welfare and Institutions Code section 3881, through which she sought further reunification services. She also appeals from the juvenile court’s order terminating her parental rights to her children J.A. and U.A. Mother contends the juvenile court erred in concluding that the beneficial relationship exception to adoption was not established. We affirm. STATEMENT OF FACTS AND PROCEDURE Detention In October of 2013, the department filed a section 300 petition alleging J.A. and U.A. were at risk of harm based on mother’s failure to protect them from ongoing domestic violence in the home caused by an older sibling, her provision of illegal controlled substances to the children’s older siblings, and mother’s own substance abuse. Mother and her six children2 lived with the maternal grandparents following mother’s release from jail. The children were taken into protective custody. The report prepared in anticipation of detention chronicled several visits with mother and the children in response to referrals of general neglect. In July 2013, the social worker described mother as being unable to control her children who cussed and yelled at everyone, including their grandparents. Maternal grandmother wanted mother and the children out of the house as they provided no support for themselves and were disruptive to the neighbors as well. One of the older children, V.M., became angry at 1 All further statutory references are to the Welfare and Institutions Code unless otherwise stated. 2 The six children consisted of V.M., then 16 years old; A.M., then 13½ years old; S.M., then nine years old; E.M., then eight years old; J.A., then 4½ years old; and U.A., then 1 year and 9 months old. Santos M. is the father of the oldest four children; Ernesto A. is the father of the younger two. Neither of the fathers is a party to this appeal; the oldest four children are not subject children of this appeal. 2. mother, slammed doors, yelled, cussed, and got into an argument with younger sister A.M. V.M. pushed both mother and A.M. and the sheriff’s department was contacted. A referral in August 2013 reported that V.M. had been physically abused and verbally assaulted by her boyfriend. When the social worker met with mother, mother stated she was surprised that V.M.’s boyfriend would hurt V.M. and that she had allowed the boyfriend to stay in the home with them to keep V.M. from running away. Mother had trouble controlling J.A. and U.A., who were present during the interview, and, at one point, J.A. cussed at mother when she did not do what he wanted her to. The social worker spoke to V.M. at school. V.M. stated she smoked marijuana one to two times a week and that mother knew of her drug use but did not approve of it. V.M. acknowledged past physical altercations with her boyfriend. The social worker spoke with E.M. at his school. E.M. reported seeing violence between V.M. and her boyfriend on numerous occasions. E.M. stated that V.M. and her boyfriend smoked marijuana daily and that mother did not mind because they would give her weed in exchange for “blunt wraps.” According to E.M., he and his brother S.M. take care of J.A. and U.A. while mother and siblings were under the influence of marijuana. E.M. said mother bought marijuana from someone in an orange car. The social worker next spoke to S.M. at his school. S.M. stated he had observed yelling and altercations between V.M. and her boyfriend. S.M. also reported that mother, V.M. and her boyfriend smoke marijuana. When the social worker later returned to the home to speak with mother, the apartment was empty and the door locked “as if the residents had been evicted.” At the beginning of October 2013, the social worker was able to locate mother and the children in a new apartment. Mother acknowledged that she was still allowing V.M.’s boyfriend into the home even though he was told by the “court” that he was not to have contact with V.M. Mother also acknowledged her own daily marijuana use, that she was aware V.M. smoked marijuana, and that A.M. “might.” 3.  The social worker then spoke with V.M., who stated she had been suspended from school for ditching. She reported smoking marijuana with A.M. V.M. stated that mother gives her money, which she uses to buy the marijuana. Mother acknowledged that she knew V.M. used the money she gave her to buy marijuana. A.M. also acknowledged her own and mother’s marijuana use. According to A.M., the younger children are left with V.M. while mother smokes marijuana, because V.M. is not in school. A.M. also reported that mother allowed A.M.’s 13-year-old boyfriend to spend the night at their house. The children were taken into protective custody on October 4, 2013. At the detention hearing October 8, 2013, the juvenile court found the petition true and the children were detained and placed temporarily in the care, custody and control of the department. Supervised visits with mother were ordered to occur weekly for one hour. Jurisdiction The report prepared in anticipation of jurisdiction stated V.M. and A.M. were, at that time, on “Runaway Status.” The report also stated mother had been arrested on October 21, 2013, for possession of a stolen vehicle. She was released after her arraignment two days later. Mother failed to attend an October 29, 2013, appointment at the department. At the November 6, 2013, jurisdiction hearing, counsel for the department requested that the dependency action regarding V.M. and A.M. be dismissed without prejudice because both were on runaway status. The petition was amended to change the statement that mother “allowed” the children to smoke marijuana to state she had “knowledge” of such. The statement that mother “gives” V.M. money to buy marijuana was stricken. Mother then submitted on the petition and the juvenile court found the allegations of the petition as amended true as to the younger four children. Disposition was set for December 12, 2013. 4. Disposition The report prepared in anticipation of disposition stated mother admitted to PCP use the day prior to the children’s removal in October, and a subsequent drug test confirmed THC, PCP and methamphetamine use. Following detention, mother was advised to immediately enroll in her case plan components. Although she enrolled in substance abuse treatment on November 7, 2013, she had missed several sessions. Disposition was eventually held on January 9, 2014. The children were adjudged dependents of the juvenile court, removed from mother’s physical custody and placed in the care of the department for placement. Mother was ordered to participate in counseling for parenting, substance abuse counseling and drug testing. Mother was advised that, due to the age of the children, failure on her part to cooperate and avail herself of services could result in termination of her parental rights after six months. Weekly supervised visits for mother were continued. A six-month review hearing was set for July 9, 2014. Six-Month Review At the July 9, 2014, hearing, the department recommended termination of services to mother for the younger two children, J.A. and U.A., and continuation of services for the older two children, S.M. and E.M., who were not placed with the younger two. Mother’s counsel stated she would submit on the recommendation for S.M. and E.M., but would object as to J.A. and U.A. Counsel for the children brought up the issue that there was an ICPC3 approved for transfer of J.A. and U.A. out of state. Counsel asked that a hearing be held on that issue if the foster parents planned on moving. The juvenile court continued the six-month review hearing until August 6, 2014. 3 ICPC refers to the Interstate Compact on Placement of Children. (See Fam. Code, § 7900 et seq.) 5.  The continued review hearing was eventually scheduled for September 23, 2014. The report prepared in anticipation of that hearing recommended continuation of services as to S.M. and E.M. and termination of services as to J.A. and U.A. According to the report, mother had made no progress toward alleviating or mitigating the causes for the children’s out-of-home placement. She enrolled in substance abuse treatment November 7, 2013, but was discharged February 7, 2014, “before completing” the program, due to non-compliance, her random drug screens, and attendance protocols. Mother failed to drug test for the entirety of the review period and disclosed to the social worker that she continued to use marijuana every other day. Mother was referred to a visitation coach, but was unable to redirect the children’s behavior when needed. In addition, J.A. and U.A. were placed together in a foster home in October of 2013, and the caretakers were committed to adopting them. At the review hearing, the juvenile court continued services as to S.M. and E.M. and found continued out-of-home placement appropriate and necessary. As for J.A. and U.A., the juvenile court terminated reunification services, finding mother failed to make progress or participate in her court-ordered reunification plan and set a section 366.26 permanency planning hearing for January 21, 2015. Section 388 Petition The permanency planning hearing was rescheduled for February 23, 2015. In the interim, on February 9, 2015, mother’s counsel filed a section 388 petition alleging changed circumstances. The petition requested reinstatement of reunification services because mother had enrolled and was actively participating in substance abuse counseling. She had attended 10 of 12 sessions with good progress and drug tested regularly and clean since November 21, 2014. According to mother, reinstatement of reunification services would allow her to “keep the family together and would prevent the sibling group from being split up.” Attached to the petition was a progress report from 6. her substance abuse counselor indicating an expected completion date for mother of May 17, 2015. On February 13, 2015, the juvenile court summarily denied mother’s section 388 petition, finding no change of circumstances. Section 366.26 Permanency Planning The adoption assessment done in anticipation of the hearing stated J.A. and U.A. had been in only one placement since being removed from mother’s care. Between detention in October of 2013 and December 2014, mother attended 32 of 63 possible visits with J.A. and U.A. J.A. and U.A. both saw the caregivers as their primary parental figures. The social worker opined the benefits of adoption for both J.A. and U.A. outweighed any detriment if their relationship with mother was severed. The children left visits with mother without any incidence of crying or sadness and expressed happiness at seeing their caregivers. J.A. referred to his caregivers as “mom” and “dad” and stated his desire to be adopted, although he wanted to continue to visit mother. The social worker opined that, if the current caregivers were unable to adopt, it would not be difficult to secure another adoptive home for J.A. and U.A. At the section 366.26 permanency planning hearing on February 23, 2015, mother’s counsel objected to termination of parental rights, arguing that severing the bond between mother and the children would be detrimental because there was a strong bond between them. Counsel argued that, while mother’s visits were not consistent in the beginning, they now were. The juvenile court found the children’s best interests were in having a permanent home. It found the bond between mother and J.A. and U.A. was “not to the extent that it would be detrimental to the children should that relationship be severed.” The juvenile court found the children were likely to be adopted. Mother’s parental rights to J.A. and U.A. were terminated. 7.  DISCUSSION I. DENIAL OF SECTION 388 PETITION Mother contends the juvenile court erred by summarily denying her section 388 petition in which she sought reinstatement of reunification services. In mother’s view, the evidence established that she made significant changes in her sobriety and it was in the children’s best interests “to reunify, keep the family together and prevent the sibling set from being separated.” For reasons discussed below, we conclude the juvenile court did not abuse its discretion. Applicable Law Family reunification services play a crucial role in dependency proceedings. (In re Alanna A. (2005) 135 Cal. App. 4th 555 , 563.) When a child is removed from the physical custody of his or her parent, the juvenile court is required, with limited exceptions, to offer or provide reunification services to the child’s parents. (§ 361.5, subd. (a).) Reunification services for a parent of a child under three years of age at detention may be limited to six months if the parent has not participated regularly and made substantial progress in a court-ordered case plan and there is not a substantial probability that the child may be returned to his or her parent by the 12-month review hearing. (§§ 361.5, subd. (a)(1)(B), 366.21, subd. (e).) Here, mother was given six months of reunification services before the juvenile court terminated them as to J.A. and U.A. Under section 388, a parent or any interested person may petition the court to change, modify or set aside a previous order “upon grounds of change of circumstance or new evidence.” (§ 388, subd. (a)(1).) To succeed on a section 388 petition, a parent must show changed circumstances establishing that the proposed modification would be in the “‘best interests’” of the child. (In re Kimberly F. (1997) 56 Cal. App. 4th 519 , 526.) “The parent seeking modification [through a section 388 petition] must ‘make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]’ [Citations.] 8. There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the child’s best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. [Citation.]” (In re Anthony W. (2001) 87 Cal. App. 4th 246 , 250.) Standard of Review We review the juvenile court’s decision to deny mother’s section 388 petition without a hearing for abuse of discretion. (In re Brittany K. (2005) 127 Cal. App. 4th 1497 , 1505.) We may not reweigh the evidence or substitute our judgment for that of the juvenile court. (In re Stephanie M. (1994) 7 Cal. 4th 295 , 319 (Stephanie M.).) We affirm the order unless it “‘“exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” [Citations.]’” (Brittany K., supra , at p. 1505.) The juvenile court’s decision will not be disturbed unless the court “‘“has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].”’ [Citations.]” (Stephanie M., supra , at p. 318.) Analysis The juvenile court denied mother’s section 388 petition on the grounds, “[t]he request does not state new evidence or a change of circumstances.” At a subsequent hearing on another matter, the juvenile court reiterated that the 388 petition had been denied because it did not see “where circumstances had changed .…” Mother asserted the following change of circumstances or new evidence to support her section 388 petition: she was enrolled and actively participating in substance abuse counseling; she had attended 10 of the 12 sessions “in her intensive outpatient treatment with reported high participation and good progress”; and she had been “drug testing clean and regularly since November 21, 2014”. Attached to mother’s petition was a progress 9. report from the Kern County Mental Health Substance Abuse System of Care dated February 3, 2015, which stated, during the reporting period between January 1, 2015, and February 3, 2015, mother attended 10 of the 12 scheduled sessions. The progress report stated mother’s level of participation was “high”; her overall progress “good”; and her expected date of completion May 17, 2015. Also attached were negative drug test results from November 20, 2014; December 16 and 23, 2014; and January 5 and 15, 2015. We conclude the juvenile court did not abuse its discretion in denying a full evidentiary hearing on the petition. Significantly, mother waited until two weeks before the rescheduled section 366.26 hearing to file the petition. We agree with the juvenile court that on the issue of changed circumstances, the petition alleged at most changing circumstances, i.e., a recently renewed effort to address the problems that led to J.A. and U.A.’s dependency by participating in a substance abuse program designed to address some of her issues. Mother simply does not have a sufficient track record of effectively addressing her drug abuse issues. Mother had a lengthy substance abuse problem, involving multiple illegal, controlled substances and had enrolled in substance abuse treatment on multiple occasions. Mother failed to drug test for the entirety of the review period and disclosed to the social worker that she continued to use marijuana every other day. Between September 2014, when the juvenile court terminated reunification services because mother failed to make any progress, and the section 388 petition in February of 2015, mother had done little but re-enroll in substance abuse treatment and begin treatment. She was not expected to complete her current program until May of 2015. At most, mother’s recent sobriety shows that she was attempting to address the issue and was in the process of changing. However, evidence of “changing circumstances” is insufficient to obtain relief under section 388. (In re Casey D. (1999) 70 Cal. App. 4th 38 , 47.) Even a showing of great effort to make improvements will not necessarily be persuasive when a parent has an extensive history of drug use. (In re 10. C.J.A.W. (2007) 157 Cal. App. 4th 1075 , 1081 [affirming the denial of a section 388 petition when the parents’ efforts at drug rehabilitation were only three months old at the time of the section 366.26 hearing]; In re Mary G. (2007) 151 Cal. App. 4th 184 , 205-206 [mother’s very recent treatment for drug abuse and bipolar disorder was not a prima facie case of changing circumstances] Casey D., supra , at pp. 47-49 [affirming denial of a section 388 petition when mother with an extensive history of drug use had been drug free for only a few months and had not completed her treatment program].) Even if mother had made a prima facie showing of changed circumstances, she failed to make a prima facie showing that the relief she requested in her section 388 petition would be in J.A. and U.A.’s best interests. “After the termination of reunification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency and stability’ [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.]” (Stephanie M., supra , 7 Cal.4th at p. 317.) In determining whether the modification is in the child’s best interest, the juvenile court should consider a number of factors, including: “(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (In re Kimberly F., supra , 56 Cal.App.4th at p. 532.) This list is not meant to be exhaustive. (Ibid.) The only evidence mother offered in support of her section 388 petition was her assertion: “Family reunification services would give the mother and her children an opportunity to reunify. Services would keep the family together and prevent the sibling group from being split up.” Although mother made a recent effort at addressing her substance abuse issue in the few months leading to the section 366.26 hearing, she failed 11. to address it at all during the reunification period, even though she was told that period would be short. Thus she failed to meaningfully address the seriousness of the problems which led to the dependency proceedings. Mother also failed to address the strength of the relative bond between J.A. and U.A. and mother, on the one hand, and J.A. and U.A. and their caregivers in their current placement. Although mother voices some concern about various incidents which occurred while the children were with the caretakers, these issues were ameliorated over time as J.A. received counseling. J.A. and U.A. were placed together in a foster family home in October of 2013 when they were first detained and remained with those caregivers, who were committed to adopting both J.A. and U.A. Mother’s petition did not provide prima facie evidence of either changed circumstances or best interests of the children. The juvenile court did not abuse its discretion by summarily denying the section 388 petition. II. BENEFICIAL RELATIONSHIP EXCEPTION TO ADOPTION Mother also contends that juvenile court erred in concluding that the beneficial relationship exception to adoption was not established when it terminated her parental rights. We disagree. Applicable Law At a permanency planning hearing, once the juvenile court finds by clear and convincing evidence that the child is likely to be adopted within a reasonable time, the court is required to terminate parental rights and select adoption as the permanent plan, unless the parent shows that termination of parental rights would be detrimental to the child under one of several statutory exceptions. (In re Bailey J. (2010) 189 Cal. App. 4th 1308 , 1314 (Bailey J.).) One of these statutory exceptions is the beneficial relationship exception to adoption, which applies when it would be detrimental to the child to terminate parental rights in that “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” 12. (§ 366.26, subd. (c)(1)(B)(i).) The burden is on the party seeking to establish the beneficial relationship exception to produce evidence establishing the exception is applicable. (Bailey J., supra , at p. 1314.) Once the juvenile court finds that a parent has met his or her burden to establish the requirements of the beneficial relationship exception are present, the juvenile court may chose a permanent plan other than adoption if it finds the beneficial relationship to be “a compelling reason for determining that termination would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B); see Bailey J., supra , at p. 1314.) The parent-child relationship exception occurs when a significant parent-child relationship is found to exist. (In re Autumn H. (1994) 27 Cal. App. 4th 567 , 575 (Autumn H.).) The juvenile court must then engage in a balancing test, juxtaposing the quality of the relationship and the detriment involved in terminating it against the potential benefit of an adoptive family. (In re Cliffton B. (2000) 81 Cal. App. 4th 415 , 424-425; see also In re Lukas B. (2000) 79 Cal. App. 4th 1145 , 1154-1156.) Interaction between the natural parent and the child will always confer some incidental benefit to the child. (Autumn H., supra , 27 Cal.App.4th at p. 575.) But a showing that the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent is not sufficient where that relationship does not meet the child’s need for a parent. (In re Jasmine D. (2000) 78 Cal. App. 4th 1339 , 1348, 1350.) Significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. The relationship arises from day-to-day interaction, companionship and shared experiences. (Autumn H., supra , at p. 575.) A parent’s failure to progress beyond monitored visitation with a child and to fulfill a “meaningful and significant parental role” justifies an order terminating parental rights. (In re Andrea R. (1999) 75 Cal. App. 4th 1093 , 1109.) “It would make no sense to 13. forgo adoption in order to preserve parental rights in the absence of a real parental relationship.” (In re Jasmine D., supra , 78 Cal.App.4th at p. 1350.) The factors to be considered when looking for whether a relationship is important and beneficial are: “(1) the age of the child, (2) the portion of the child’s life spent in the parent’s custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child’s particular needs.” (In re Angel B. (2002) 97 Cal. App. 4th 454 , 467, fn. omitted.) “[F]or the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt.” (Id. at p. 468.) Standard of Review Because there is some confusion by the parties about the appropriate standard of review, we set it out in detail here. On appeal after a court has rejected a parent’s effort to establish the exception, two different standards of review apply. (See In re K.P. (2012) 203 Cal. App. 4th 614 , 621-622 (K.P.); Bailey J., supra , 189 Cal.App.4th at p. 1314.) Since the parent must show the existence of a beneficial parental relationship, which is a factual issue, we uphold a court’s express or implied finding that there is no beneficial relationship if supported by substantial evidence. (K.P, supra , at p. 621; Bailey J., supra , at p. 1314.) More specifically, a challenge to a court’s failure to find a beneficial relationship amounts to a contention that the “undisputed facts lead to only one conclusion.” (In re I.W. (2009) 180 Cal. App. 4th 1517 , 1529.) Thus, unless the undisputed facts establish the existence of a beneficial parental relationship, a substantial evidence challenge to this component of the juvenile court’s determination cannot succeed. (Bailey J., supra , at p. 1314.) The second requirement for the exception is that the beneficial parental relationship constitute a “compelling reason for determining that termination would be detrimental .…” (§ 366.26, subd. (c)(1)(B); K.P., supra , 203 Cal.App.4th at p. 622.) Although grounded in the facts, the court’s determination of this issue is a 14. “‘quintessentially’ discretionary decision, which calls for the juvenile court to determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption. [Citation.] Because this component of the juvenile court’s decision is discretionary, the abuse of discretion standard of review applies.” (Bailey J., supra , 189 Cal.App.4th at p. 1315; see also K.P., supra , at p. 622.) For instance, when a parent has had custody of the children and visited consistently when she did not have custody, and had an established bond recognized by the agency workers, substantial evidence supports the first prong of the application of the statutory exception. ( K.P., supra , 203 Cal.App.4th at p. 622.) The determination then becomes whether under the facts of the case, there is a compelling reason for the court to order a plan other than adoption, and whether the court abused its discretion in failing to do so. (Id. at pp. 622-623.) In simplest terms, the establishment of the beneficial parental bond exception depends upon a parent having developed such a beneficial bond that it would be detrimental to sever it. The benefit from continuing with the parent would outweigh any benefit to the child derived from his or her adoption. (§ 366.26, subd. (c)(1)(B)(i); Autumn H., supra , 27 Cal. App. 4th 567 , 575.) Analysis Mother argues she established both prongs of the parental relationship exception, and that the record in this case is supportive that her children would best benefit from a continued relationship with her. We conclude mother’s limited contact with her children failed to satisfy even the initial prong of the beneficial parent-child relationship exception to termination of her parental rights. Between detention in October 2013 and December 18, 2014, mother attended only 32 of 63 possible visits with the children. She had, according to the social worker, attended more consistently in the last six months than in the initial six months, but even then did not always arrive on time and continued to miss some visits. 15.  Even if we were to find that mother maintained regular visitation with the children, satisfying the second prong requires the parent to prove that “severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.] A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.]” (In re Angel B., supra , 97 Cal.App.4th at p. 466.) Mother argues that there was a strong bond between her and the children and that visits went well. But evidence that a parent has maintained “‘frequent and loving contact’ is not sufficient to establish the existence of a beneficial parental relationship.” (Bailey J., supra , 189 Cal.App.4th at pp. 1315-1316.) “To trigger the application of the parental relationship exception, the parent must show the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination.” (In re Aaliyah R. (2006) 136 Cal. App. 4th 437 , 449.) A beneficial relationship is one that “promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (Autumn H., supra , 27 Cal.App.4th at p. 575.) The existence of this relationship is determined by “[t]he age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s particular needs .…” (Id. at p. 576.) At the time of the termination hearing, J.A. was almost six years old and U.A. had just turned three years old. Both children spent one year and four months out of mother’s custody, a significant amount of time in their young lives. By the time of the termination hearing, there was no evidence in the record that the children would suffer detriment if the parent-child relationship was severed. Instead, both children considered the prospective adoptive parents as the primary parental figures in their lives. J.A. called his caretakers “mom” and “dad” and wished to be adopted. The prospective adoptive parents 16. were said to have consistently met the needs of the children since their placement and were committed to providing them with stability. They wished to adopt the children. Mother claims that a beneficial relationship existed, sufficient to overcome the statutory preference for adoption, noting specifically J.A.’s actions of giving mother a chocolate rose on Mother’s Day. Mother notes that, while this action is “trite taken alone,” it is “more loving and heartfelt than the prospective adoptive mother’s statements regarding J.A. …[who] stood arms folded across her chest informing the social worker she needed a respite day because of J.A.” and that she was “sick of J.A.” and he got “on her nerves.” Mother is referring to an incident which occurred in January of 2014, only three months after detention, when J.A. failed to inform the caregiver that U.A. filled her diapers and made a mess trying to clean herself. J.A., who watched U.A. make the mess, told the caregiver he did not tell her “on purpose.” A discussion between J.A. and the social worker suggested J.A. used the term “on purpose” incorrectly, leading to a misunderstanding on the part of the caretaker. When the social worker explained this to the caretaker, the caretaker stated that J.A. was “a good kid but his attitude changes after he sees his mother.” After detention, J.A. exhibited some behavioral issues. He was diagnosed with Post Traumatic Stress Disorder and as a victim of physical abuse and neglect, which he suffered while in mother’s custody, and had been in counseling since. We find that there is substantial evidence to support the juvenile court’s findings that J.A. and U.A. would not suffer detriment from termination of the parent-child relationship, and that maintaining the relationship would not promote their well-being “‘to such a degree as to outweigh the well-being the child[ren] would gain in a permanent home with new, adoptive parents.’ [Citation.]” (In re Amber M. (2002) 103 Cal. App. 4th 681 , 689.) While mother has demonstrated that she cares for her children and has an affectionate relationship with them, she has not demonstrated an ability to provide for the children, over the long-term, with a stable, safe and loving environment. Accordingly, 17. the juvenile court properly found there was no beneficial relationship sufficient to overcome the statutory preference for adoption. DISPOSITION The juvenile court’s orders are affirmed. 18.

2020-01-17 22:01:36.043947+00

Siefkin

OPINION. Siefkin: This is a proceeding for the redetermination of a deficiency in income and profits taxes for 1920 in the amount of $2,276.97. Error is alleged as to the disallowance of certain depreciation claimed on buildings, machinery and equipment. *758The petitioner is a corporation with its office and principal place of business at Filer City, Mich. On its income and profits-tax return for 1920 it deducted $4,539.52 and $18,286.89 as depreciation on concrete buildings and machinery and equipment, respectively. In determining the deficiency involved in this proceeding the respondent disallowed $1,597.63 and $3,352.31 of the deductions for depreciation of buildings and machinery and equipment respectively. The petitioner built its plant, which was a pulp mill and not a paper mill, and which was designed and used for the manufacture of unbleached sulphate pulp, commonly known as Kraft pulp, in 1916 and 1917, and started operations shortly after January 1, 1918. It took depreciation in 1918 and 1919 at the rate of 5 per cent on buildings and at the rate of 10 per cent on machinery and equipment. It intended to take the same rates in 1920, but instead of those rates being applied to the building and to the machinery and equipment accounts as of January 1,1918, they were applied to the accounts as reduced by the depreciation taken in 1918 and 1919. The result was that rates of only 4.6 per cent and of only 8.6 per cent were taken respectively on buildings and on machinery and equipment — straight line depreciation. The following table shows the original cost of, and depreciation taken on, buildings and machinery in 1918,1919, and 1920: Buildings constructed in 1916 and 1917: Cost (1918)_$50,404.73 5% depreciation 1918- 2, 520.23 No depreciation for 1916 and 1917_ Cost (1919)_ 97,567.89 5% depreciation 1919 on $95,047.66- 4, 752. 38 Cost (1920)_ 98,063.04 5% depreciation 1920 on $90,790.43_ 4, 539. 52 Amount carried on books J an. 1, 1921- 97, 567. 89 Machinery and equipment installed, 1917: ■Cost (1918)_ 120,023.82 10% depreciation 1918_ 12, 002. 38 No depreciation for 1917. Cost (1919)_ 196,800.12 10% depreciation 1919 on $184,797.74_ 18, 479.77 Cost (1920)_213,351.13 10% depreciation 1920 on $182,808.98_ 18,286. 89 Amount carried on books Jan. 1, 1921_ 196, 800.12 The respondent allowed a rate of 4 per cent on buildings and 7 per cent on machinery and equipment, or a total of $2,941.89 on buildings and a total of $14,934.58 on machinery and equipment. The petitioner built its plant in 1917 and 1918 after the United States had entered the World War. Because of the control by various governmental war agencies of raw materials, and because of the difficulty in obtaining good machinery, the petitioner, in the construction of its plant, was compelled to use inferior grades of *759materials and inferior machinery and other equipment. As illustrative of what took place in this respect, the company was required to replace within a very short time three evaporators, six liquor tanks, and two digesters. Because of the extraordinary demand for pulp in 1920 the company operated its plant far beyond normal capacity. Its normal capacity, as demonstrated by its operations both prior and subsequent to 1920, was about 20 tons per day. During 1920 the plant produced approximately 30 tons of pulp per day. The total production of pulp in 1918 was 6,284 tons; in 1919, 7,551 tons; and in 1920,. 9,151 tons. During all of these years the mill was operated 24 hours a day, but during the year 1920 the plant was not shut down over Sundays for repairs, it having been run continuously and repairs having been made while the plant was in operation. These repairs were not such as should have been and as are made in normal times, so that the result was much more wear and tear on the machinery and equipment in 1920 than in previous and subsequent years. The digesters, evaporators, rotary furnaces and other machinery were constantly in operation during the year 1920, and because of such constant operation without necessary repairs being made from time to time, and because of the inferior quality of the materials entering into various parts of the machinery, a very rapid deterioration took place. The machinery was largely of special design and very expensive. The digesters, installed originally at a cost of from $8,000 to $12,000, each, did not stand up under the forced operations and developed cracks and seams. Two of the digesters finally had to be taken out entirely. The evaporators and rotary furnaces had to be rebuilt and later taken out entirely and replaced. No replacements were charged to operation or maintenance. All replacements and new construction at all times were charged to the capital account. The plant of the company in 1920 consisted of a wood room, a digester house, a diffuser room, a boiler house, a wet machine room, and a recovery building. These buildings were all of the same general construction, consisting of steel columns and trusses, with steel reinforced floors, straight concrete foundations and straight concrete walls up to a height of about 6 feet, with brick walls above that point. The roofs over the buildings were wooden roofs over the digester house and diffuser and wet machine rooms, and asphalt and steel on the recovery building and boiler house. The roofs over the recovery building and boiler house were replaced after four years of operation on account of destruction by chemicals and moisture incident to the pulp mill operations. All of the wooden roofs had to be extensively repaired and replaced in 1928. The brick walls in the recovery building, particularly in the upper parts thereof, had to *760be partly replaced in 1928. These walls were reached by fumes from chemicals used in the pulp-mill operations and deteriorate very rapidly, having a life of not to exceed 10 or 12 years. The wooden roofs were constantly subjected to heavy condensation, rapid changes from wet to dry and from heat to moisture and vice versa, resulting in rapid deterioration of materials and requiring replacement in from seven to eight years. At the time of the construction of the company’s pulp mil), it was estimated that the life of the company’s operations would not exceed 20 years, based on the available supply of pulp wood. After the war and because of foreign competition in pulp, the company found that to continue in business it had to build a paper mill, which it did in 1922. The machinery in the wood room consisted in a general way of a large barking drum, a chipper, wire screens, conveying machinery, motors, etc. In the preparation of pulp wood it is barked in the barking drum, which creates a great strain upon the drum and repairs and replacements are necessary in the barking room almost constantly by replacing angle irons, bolts, etc. The life of a chipper, which cuts the wood into chips, is about two years. The knives in the chipper are replaced every six hours for regrinding, and a set of knives lasts about three months. The chipper screens by continuous operation are not replaced in their entirety, but the wire screens therein contained are replaced within four years, and this replacing necessitates the rebuilding of the screens on account of the constant wear and tear. The conveying machinery has a life of about 10 years, but is subject to constant repairs and maintenance, The motors in the wood room are subjected to unusual wear and tear and call for constant care on account of the dust created oe account of the barking, chipping, and screening of wood. The machinery in the digester house, so-called, consists of three large valves or digesters. These digesters are made from the highest grade of steel obtainable and are of one piece and hammer-welded. They are of a cone shape and approximately 9 feet in diameter and 20 feet long. A steam pressure is necessary for the cutting of the wood from 150 to 180 pounds and the digesters are tested for 200 pounds, cold water pressure. The alkali liquor, which eats the steel, and the contraction and expansion on account of the steam pressure make a great strain upon these units. The petitioner had to replace in 1926 the first digester installed in the fall of 1917 and first used in January of 1918. These digesters ranged from $8,000 to $12,000, each, in price. In the digester room and other portions of the plant the machinery required extremely heavy gears and steel structure on heavy foundations, all subjected to tremendous strain and stress and all resulting in high charges to maintenance and upkeep and rapid depreciation. *761In the diffuser room one new diffuser had to be installed in August of 1926. A great amount of piping was necessary in this room to carry the liquor and stock to the diffusers and the replacement cost upon the valves in conjunction with this piping was extremely heavy, particularly the valves and connections to and from the rotary digesters and recovery buildings. On account of moisture the replacement of the flat screens and Shaker screens for the screening of pulp is necessary to the extent that the wooden portions of the screens must be replaced every 5 or 6 years. The Cooper screening and the screens must be replaced every 3 or 4 years. In the operation of the recovery building 8 to 12 storage tanks, together with rotary furnaces, were used. On account of the alkali liquor which is being recovered and the water evaporated therefrom in order to save the chemicals which eat the iron and steel, the evaporation tubes in the recovery building have to be replaced every 9 to 13 months and the causticizing tanks have to be replaced about every 7 years. There were 7 of these tanks in the recovery building in 1920, costing approximately $6,300. In the operation of the recovery building there were 8 to 12 storage tanks of large size which are subjected to the alkaji, which eats into the iron and results in a life of from 7 to 8 years. There were thousands of feet of piping of various sizes up to as large as 10 inches in diameter, used to carry the liquor to and from its sources of supply, and these pipes have to be replaced about every 8 years. In the recovery process a black ash is obtained through rotary furnaces. A terrific heat is necessary in this operation and also in the making of “ white liquor ” from the black ash, which goes into furnaces constructed of soapstone and extraordinary quality of fire brick, carrying a cost greater than fire brick ordinarily used for boilers. The terrific heat makes it necessary to replace these furnaces in anywhere from 4 to 8 months. There are some items of machinery which were installed in the pulp mill plant in 1918 which are still in use, but their condition is very different from the condition when they were installed. Certain portions of many machines are still in use, whereas other portions have had to be entirely replaced. All replacements, as already stated, comprising the purchase of new machinery and equipment and of new installation, have at all times been capitalized and not charged to expense. Among numerous items which have had to be entirely replaced during 10 years operation are three Swenson triple-effect evaporators costing $3,600, three steel-plate three-compartment tanks costing over $4,600, one steel-plate white-liquor tank costing $780, one Kellogg steel welded digester costing $13,065, one Mani-towoc steel riveted digester costing $7,914, and two open liquor tanks costing $1,207. In addition to these items, all of- the motors in the *762plant have been taken out and 60-cycle motors purchased. All of these motors and all of the machinery which has had to be replaced have been capitalized. No amortization charges were made against the 30-cycle motors which were taken out. They are still on hand, as the company has been unable to dispose of them. The items of machinery enumerated which have had to be entirely replaced covered only the major replacements. In addition to this many other items have had to be replaced. All items of replacement constituting new machinery, new purchases, or new construction were capitalized and appeared on the books of the company. From the above facts, which are uncontradicted, we conclude that the amounts taken as depreciation by the petitioner were reasonable and that the disallowance of a portion by the respondent was erroneous. Judgment will be entered uméer Rule 50.

2020-12-01 13:01:49.54944+00

http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/1%20CA-JV%2020-0195%20-%20Rebecca%20W.pdf

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE REBECCA W., Appellant, v. DEREK B., R.B., Appellees. No. 1 CA-JV 20-0195 FILED 12-1-2020 Appeal from the Superior Court in Mohave County No. S8015SV202000001 The Honorable Megan A. McCoy, Judge Pro Tempore AFFIRMED COUNSEL The Law Offices of Michael and Casey, Phoenix By Sarah J. Michael, Robert Ian Casey Counsel for Appellant Derek B., Kingman Appellee  REBECCA W. v. DEREK B., R.B. Decision of the Court MEMORANDUM DECISION Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Jennifer B. Campbell and Chief Judge Peter B. Swann joined. W I N T H R O P, Judge: ¶1 Rebecca W. (“Mother”) appeals from the superior court’s decision terminating her parental rights. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Mother and Derek B. (“Father”) are the biological parents of R.B., born in March 2016. Throughout R.B.’s life, Mother has struggled with drug abuse and has been in and out of prison. The child briefly lived with both parents; however, after Father witnessed Mother using drugs while home with the child, Mother moved out, and Father became the primary care provider when the child was approximately one year old. In 2019, Father petitioned for sole custody of R.B., which the court granted to Father when Mother did not respond to the petition. ¶3 In early 2020, Father petitioned to terminate Mother’s parental rights, citing numerous grounds under Arizona Revised Statutes (“A.R.S.”) section 8-533(B). The court ordered a social study to evaluate the parents and R.B. pursuant to A.R.S. § 8-536. The social study documented Father’s and Mother’s respective drug problems, Father’s successful treatment, and R.B.’s progress. The study also noted Father’s fiancée had bonded with R.B. and wished to adopt the child. ¶4 Father represented himself throughout the proceedings and did not file a list of witnesses or exhibits before the termination hearing. A copy of the completed social study was filed with the court approximately one week before the hearing date. Mother, through counsel, objected to the court taking judicial notice of the social study “unless [the author] testifies to it.” The court found the social study admissible under Arizona Rule of Procedure for the Juvenile Court (“Rule”) 66(E). The court also allowed Father to testify, noting “the Court cannot imagine a scenario in which the Respondent was unaware that that would be happening.” 2  REBECCA W. v. DEREK B., R.B. Decision of the Court ¶5 Mother, Father, and the author of the social study testified at the termination hearing. After hearing the testimony and reviewing the social study, the court found clear and convincing evidence that Mother had abandoned and neglected R.B. and that she was unable to fulfill her parental obligations because of ongoing drug use. See A.R.S. § 8-533(B)(1), (2), (3). The court also found termination to be in R.B.’s best interests. The court granted Father’s petition to terminate Mother’s parental rights. ¶6 Mother timely appealed. We have jurisdiction pursuant to A.R.S. §§ 8-235(A) and 12-2101(A)(1). ANALYSIS ¶7 On appeal, Mother does not challenge either the court’s statutory findings supporting termination or the court’s findings concerning R.B.’s best interests; instead, she argues the superior court erred in admitting the social study and permitting testimony from Father and the study’s author despite Father’s failure to file a disclosure statement. We discuss Mother’s arguments below, but note the superior court has broad discretion in ruling on issues of disclosure and discovery, and we will not reverse a ruling unless the court has abused its discretion and caused unfair prejudice to a party. Marquez v. Ortega, 231 Ariz. 437 , 441, ¶ 14 (App. 2013); Larsen v. Decker, 196 Ariz. 239 , 241, ¶ 6 (App. 2000). ¶8 As to the social study, Mother argues the superior court ignored Rule 44(B) in admitting the study over her objection. Rule 66(E), however, provides a court-ordered social study “is admissible as evidence unless a party has filed a notice of objection” pursuant to Rule 44. See A.R.S. § 8-537(B); cf. Ariz. Dep’t of Econ. Sec. v. Superior Court (Armstrong), 181 Ariz. 469 , 471 (App. 1994) (“[I]n severance actions, when any party timely, specifically, and properly objects to portions of a social study report, such portions of that report are not admissible into evidence.”). Mother admits she did not file such an objection, even after the author filed the social study report with the court. Further, the record shows that her objection to the study at the hearing was qualified: She objected to its admission “unless” the study’s author testified. In fact, the study’s author did testify and was cross-examined by Mother’s counsel. On this record, the court did not abuse its discretion in admitting the social study, and Mother was not unfairly prejudiced by its admission. ¶9 Mother contends the superior court erred in admitting testimony from the study’s author. We disagree. “A court generally must hear any competent and potentially significant evidence that bears on the 3  REBECCA W. v. DEREK B., R.B. Decision of the Court best interests of the child,” despite any failure to disclose pursuant to Rule 44. James A. v. Dep’t of Child Safety, 244 Ariz. 319 , 321-22, ¶ 8 (App. 2018). Here, the parties each had a copy of the study in advance of the hearing. As previously noted, Mother’s counsel’s only objection to admission of the study was that the author be subject to cross-examination. The court accordingly arranged for the author to appear, and Mother’s counsel had a full opportunity to question the author concerning her investigation and opinions. On this record, the court did not abuse its discretion or otherwise err in permitting the study’s author to testify, and Mother has not demonstrated any unfair prejudice. ¶10 Mother also argues the court erred in permitting Father to testify as an undisclosed witness. Her argument that his testimony created a “trial by surprise” is unavailing, as Mother included Father in her disclosed list of witnesses and noted he would testify “as to the allegations of the petition.” At the hearing, Father in fact testified as to the allegations in his petition, and Mother, through her attorney, cross-examined him. Mother has not demonstrated any abuse of discretion or legal error, nor has she identified any unfair prejudice. ¶11 Finally, Mother argues the alleged evidentiary errors violated her right to due process. As we have discussed, we find the superior court did not abuse its discretion nor commit the evidentiary errors that Mother alleges. More importantly, Mother has not demonstrated that the proceedings were fundamentally unfair so as to deprive her of due process. See Kent K. v. Bobby M., 210 Ariz. 279 , 284, ¶ 24 (2005); see also Brenda D. v. Dep’t of Child Safety, 243 Ariz. 437 , 448, ¶ 39 (2018) (explaining due process violation does not warrant reversal without a showing of prejudice). CONCLUSION ¶12 For the foregoing reasons, we affirm the superior court’s decision terminating Mother’s parental rights. AMY M. WOOD • Clerk of the Court FILED: AA 4

2020-12-01 13:01:50.601932+00

http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/1%20CA-CV%2020-0050%20-%20Denitang.pdf

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE HELENE DENITANG, et al., Plaintiffs/Appellants, v. ARIZONA THERAPY SOURCE SALES SERVICE, INC., Defendant/Appellee. No. 1 CA-CV 20-0050 FILED 12-1-2020 Appeal from the Superior Court in Maricopa County No. CV2017-012355 The Honorable James D. Smith, Judge AFFIRMED COUNSEL Gill Law Firm, Buckeye By Jeffrey R. Gill, Meghann L. St. Thomas Co-Counsel for Plaintiffs/Appellants Miller, Pitt, Feldman & McAnally, P.C., Tucson By Timothy P. Stackhouse, Stanley G. Feldman, Gerald Maltz Co-Counsel for Plaintiffs/Appellants The Moulton Law Firm, P.C., Scottsdale By Timothy L. Moulton Co-Counsel for Defendant/Appellee Hill, Hall & DeCiancio, PLC, Phoenix By Christopher Robbins Co-Counsel for Defendant/Appellee Mark W. Clary, P.L.L.C., Tempe By Mark W. Clary Co-Counsel for Defendant/Appellee MEMORANDUM DECISION Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Jennifer B. Campbell and Chief Judge Peter B. Swann joined. W I N T H R O P, Judge: ¶1 Plaintiff Samuel Ndjedanem Beti, by and through his legal guardian, Helene Denitang, appeals the superior court’s judgment after a jury trial in favor of Defendant Arizona Therapy Source Sales Service, Inc. (“AZ Therapy”). The underlying negligence action arose out of injuries Beti sustained during a physical therapy session at Strength Training, Inc. (“STI”). Beti argues that several errors occurred that require a new trial. For the following reasons, we affirm. FACTS1 AND PROCEDURAL HISTORY2 ¶2 On July 18, 2013, Beti, then 15 years old, was engaging in physical therapy at STI following knee surgery due to a basketball injury. The physical therapy included walking on a treadmill owned and 1 We review the evidence in the light most favorable to upholding the verdict. See, e.g., McFarlin v. Hall, 127 Ariz. 220 , 224 (1980). 2 AZ Therapy argues Beti’s “Statement of Facts” in his opening brief “is so cryptic and incomplete as to provide little assistance” in resolving this appeal. We agree that Beti’s briefing contains deficiencies. See, e.g., ARCAP 13(a)(5), (7). Nonetheless, we decline to summarily reject Beti’s appeal on this basis. See Clemens v. Clark, 101 Ariz. 413 , 414 (1966); Lederman v. Phelps Dodge Corp., 19 Ariz. App. 107 , 108 (1973). 2  DENITANG, et al. v. ARIZONA THERAPY Decision of the Court maintained by STI.3 At some point while on or near the treadmill, Beti fell and hit his head on the floor of the STI facility, suffering brain trauma. STI personnel did not observe the fall. ¶3 Prior to these events, STI conducted daily, weekly, and monthly inspections, testing, and maintenance of the treadmill to ensure it was working properly. Additionally, STI had hired AZ Therapy to perform annual electrical safety inspections of some of its training equipment, including the treadmill used by Beti. These inspections were solely electrical safety inspections intended to prevent electrical-shock or fire hazards; they did not include, or need to include, inspection of mechanical components, such as the deck or belt. On May 30, 2013, approximately two months before Beti was injured, AZ Therapy had conducted its most recent annual electrical safety inspection of the treadmill. ¶4 In August 2014, Beti, through his grandmother, Denitang, filed a complaint against STI and its employees for negligence, premises liability, and medical negligence in Maricopa County Superior Court case no. CV2014-011009. STI’s insurance carrier intervened, and the claims were eventually settled. ¶5 During the litigation involving STI, several experts performed multiple inspections of the treadmill. STI had retained Timothy Leggett, a mechanical engineer, and Johan Ivarsson, Ph.D., a biomechanical engineer, to inspect STI’s facility and the treadmill, prepare reports, and possibly testify. Leggett was hired to examine the mechanical/functional aspects of the treadmill and to address the opinions of Beti’s expert, David Paulus, Ph.D., a mechanical engineer; Dr. Ivarsson was hired to conduct a biomechanical analysis to determine what fall scenarios were consistent with the evidence in the case and to address the opinions of Kerry Knapp, Ph.D., Beti’s expert in injury biomechanics and human anatomy. ¶6 In March 2015, approximately one year and eight months after the incident, Leggett and Dr. Ivarsson inspected, measured, and conducted various operational tests on the treadmill, including walking on it at different speeds and elevations, and observing others using it. They also gathered information about what had happened on the day of Beti’s injury and Beti’s body position after the incident. Dr. Ivarsson returned to inspect the treadmill again in March 2016. On September 30, 2016—more than three years after Beti’s accident—Dr. Paulus and Dr. Knapp performed their only inspection of the treadmill. Subsequently, Leggett and Dr. 3 This was the third time Beti had used the treadmill. 3  DENITANG, et al. v. ARIZONA THERAPY Decision of the Court Ivarsson inspected the treadmill again in February 2017. Finally, in April 2017, Leggett conducted another inspection of the treadmill, which was apparently still in use.4 ¶7 In September 2017, Beti, through Denitang, filed a negligence complaint against AZ Therapy. Beti alleged that, in inspecting the treadmill, AZ Therapy negligently failed to identify and repair the treadmill’s worn deck, and as a result, when Beti was using the treadmill, the belt snagged on the deck, causing it to “stutter” and causing Beti to fall off the treadmill. ¶8 AZ Therapy (1) denied that it owed Beti a duty; (2) contended that even if a duty existed, it had not breached any duty; and (3) denied that any of Beti’s injuries were actually or proximately caused by its actions or failure to act. AZ Therapy maintained Beti could not show its electrical inspection was negligent or that any treadmill problem, if one existed, caused Beti to fall. Not surprisingly, AZ Therapy contended that, at best, Beti’s experts could “only guess or speculate about the possible events leading up to and causing the alleged uncontrolled fall.” ¶9 At trial, Dr. Paulus and Dr. Knapp testified on behalf of Beti. Dr. Paulus testified he was retained to inspect the condition of the treadmill, and he opined that the treadmill had become unsafe to use because the belt was “glazed,” the deck was “worn out,” and the handrails were “loose.” On cross-examination, Dr. Paulus testified he walked, ran, and changed elevation on the treadmill while conducting his examination of the machine, and he conceded he had not tripped, stumbled, slipped, fallen, or lost his balance, despite wearing hiking shoes while doing so. Dr. Knapp testified that Beti’s resting position was consistent with an uncontrolled fall off the back of the treadmill while it was running at 3.3 miles per hour. On further direct examination, Dr. Knapp testified that although he was “old” with “walking issues,” he also had walked on the treadmill—ostensibly while wearing cowboy boots—without falling, but he did note he held onto the treadmill’s rails as a safety precaution. Neither testified to experiencing or observing any “stutter” in the operation of the treadmill belt. 4 At trial, some STI employees testified they believed the treadmill was eventually taken out of service, but they were unclear when that occurred. Dr. Paulus, relying on the statements of those STI employees, testified he believed the treadmill had been taken out of service, but stated that even if it had not been, the additional wear from several additional years of service “wouldn’t have changed it that much more.” 4  DENITANG, et al. v. ARIZONA THERAPY Decision of the Court ¶10 AZ Therapy retained Leggett and Dr. Ivarsson, the same experts retained by STI, and each testified at trial. Leggett testified in part that when he walked on the treadmill and observed others, including Dr. Ivarsson, doing so, the treadmill appeared to run properly and he observed nothing wrong with its belt or deck; he conceded, however, that he had not dismantled the machine to look under the belt. Dr. Ivarsson testified in part that he and Leggett, who vary substantially in size, each walked on the treadmill to determine if its deceleration might be affected by body weight, and he opined that “basic physics” disproved Dr. Knapp’s opinion, which he contended failed to account for critical facts and testimony from other witnesses. On cross-examination, he explained he had walked on the treadmill because he “wanted to get a sense for it,” and that he was not necessarily implying the treadmill was safe when Beti was injured.5 AZ Therapy also elicited testimony on cross-examination from a long-time STI employee, Dane Dorsten—whose duty it was to inspect, conduct safety checks on, and maintain the treadmill—that he was unaware of any “mechanical problems, defects, conditions or incidents involving this treadmill,” either in the three years he had been employed at STI before Beti’s accident or in the years afterward. ¶11 At the conclusion of the nine-day trial, the jury returned a general defense verdict in favor of AZ Therapy.6 The superior court subsequently entered final judgment in favor of AZ Therapy. Beti moved for a new trial and an evidentiary hearing on the motion, which the court denied. ¶12 We have jurisdiction over Beti’s timely appeal. See Ariz. Rev. Stat. (“A.R.S.”) § 12-2101(A)(1), (5)(a). 5 Beti concedes that “Dr. Ivarsson did not testify about whether the treadmill seemed to operate safely.” 6 The verdict forms contained no findings except the verdict (and an allocation of fault and damages if the jury found AZ Therapy liable). Additionally, no special interrogatories were submitted to the jury, and it appears none were requested. In general, “[t]he rule in Arizona is that, in the absence of a request that the jury bring in a special verdict on each count if several counts, issues or theories are tried and submitted to the jury, a general verdict will stand if evidence on one count, issue or theory is sufficient to sustain the verdict.” Papastathis v. Beall, 150 Ariz. 279 , 283 (App. 1986) (citing Reese v. Cradit, 12 Ariz. App. 233 , 238-39 (1970) (citing cases)). 5  DENITANG, et al. v. ARIZONA THERAPY Decision of the Court ANALYSIS I. Beti’s Challenges to AZ Therapy’s Expert Witnesses ¶13 To establish a negligence claim, a plaintiff must prove four elements: (1) a legal duty or obligation requiring the defendant to conform to a certain standard of care; (2) the defendant’s failure to conform to the required standard; (3) a causal connection between the defendant’s conduct and the plaintiff’s resulting injury; and (4) actual loss or damages. Gipson v. Kasey, 214 Ariz. 141 , 143, ¶ 9 (2007); Ontiveros v. Borak, 136 Ariz. 500 , 504 (1983) (citing William L. Prosser, Handbook on the Law of Torts § 30, at 143 (4th ed. 1971); Wisener v. State, 123 Ariz. 148 , 149 (1979)). ¶14 On appeal, Beti argues the superior court erred in allowing AZ Therapy’s experts—Leggett and Dr. Ivarsson—to testify about their post-accident use of the treadmill and Leggett’s observations of others walking on the treadmill without incident because their testimony was not the proper subject of expert testimony7 and was, according to Beti, at least in part duplicative, violating the one-expert-per-issue rule.8 Beti further maintains “[t]here was no foundation for admission of the purported lack of post-incident accidents” because “[t]here was no testimony that STI or AZ Therapy had any system in place to ensure they would have known of any incidents,” and any testimony about walking on the treadmill “was not helpful to the jury.” 7 Beti argues AZ Therapy’s experts provided mere “opinion testimony,” akin to a lay witness testifying to the estimated speed of an automobile, because they provided relatively few facts to support the inferences they drew. 8 To avoid duplicative and cumulative expert opinions, each side is presumptively allowed only one expert per issue. See Ariz. R. Civ. P. (“Rule”) 26(b)(4)(F)(i) (stating that, generally, “[u]nless the parties agree or the court orders otherwise for good cause, each side is presumptively entitled to call only one retained or specially employed expert to testify on an issue”). Nonetheless, the rule contemplates liberal expansion of its presumptive limitation when “an issue cuts across several professional disciplines.” Ariz. R. Civ. P. 26(b)(4) cmt. to 1991 amend. to Rule 26(b)(4)); see also Hardt v. AZHH, LLC, 242 Ariz. 449 , 452, ¶ 11 (App. 2017) (recognizing the simple intent of the rule is to limit the presentation of cumulative evidence). 6  DENITANG, et al. v. ARIZONA THERAPY Decision of the Court ¶15 We will affirm the superior court’s rulings on the admission of evidence absent an abuse of discretion or legal error and resultant prejudice. See Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493 , 506 (1996); Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85 , 88, ¶ 7 (App. 1998) (citing Gasiorowski v. Hose, 182 Ariz. 376 , 382 (App. 1994)). Thus, we will not reverse if the jury would have reached the same verdict without the admitted evidence. See Brown, 194 Ariz. at 88, ¶ 7. We review legal questions and the interpretation of statutes de novo. See, e.g., Open Primary Elections Now v. Bayless, 193 Ariz. 43 , 46, ¶ 9 (1998). ¶16 We also review the denial of a motion for a new trial for an abuse of discretion. First Fin. Bank, N.A. v. Claassen, 238 Ariz. 160 , 162, ¶ 8 (App. 2015); Larsen v. Decker, 196 Ariz. 239 , 244, ¶ 27 (App. 2000). In considering a motion for a new trial, the superior court “must respect the role of the jury and the integrity of the jury trial system.” State v. Fischer, 242 Ariz. 44 , 50, ¶ 19 (2017) (citing Cal X–Tra v. W.V.S.V. Holdings, L.L.C., 229 Ariz. 377 , 403, ¶ 88 (App. 2012)). Determining the credibility of witnesses and finding the facts is primarily the province of the jury, and a judge has no “vote in deciding the case, much less a vote equal to or greater than that of the jurors; but given the judge’s training, experience, and unique vantage point, the judge must have substantial latitude in overseeing the jury verdict.” Id.; see also Reeves v. Markle, 119 Ariz. 159 , 163 (1978) (recognizing that we generally afford the trial court wide deference because “[t]he judge sees the witnesses, hears the testimony, and has a special perspective of the relationship between the evidence and the verdict which cannot be recreated by a reviewing court from the printed record”). ¶17 In determining whether Beti has been prejudiced, we examine whether the alleged errors materially affected his rights. See Ariz. R. Civ. P. 59(a)(1) (“The court may, on motion, grant a new trial on all or some of the issues--and to any party--on any of the following grounds materially affecting that party’s rights . . . .”); see also Callender v. Transpacific Hotel Corp., 179 Ariz. 557 , 562 (App. 1993) (“To justify reversal, trial errors must be prejudicial to the substantial rights of the appealing party.” (citing Walters v. First Fed. Sav. & Loan Ass’n of Phoenix, 131 Ariz. 321 , 326 (1982))). ¶18 Here, even assuming without deciding that the superior court improperly admitted some portions of testimony from AZ Therapy’s experts, and further assuming none of Beti’s arguments with regard to the expert testimony were waived (as argued by AZ Therapy), Beti cannot demonstrate that his rights were materially affected and prejudice resulted requiring a new trial. 7  DENITANG, et al. v. ARIZONA THERAPY Decision of the Court ¶19 In considering Beti’s motion for a new trial, the superior court thoroughly addressed Beti’s expert witness testimony arguments, including his argument that, if the evidence should have been excluded, he had been prejudiced. In concluding that Beti had not been prejudiced, the court explained: [Beti’s] claim depended on [AZ Therapy] performing comprehensive safety checks of the equipment at the physical therapy facility. [AZ Therapy’s] principal [Alan Stotts] testified unambiguously that he never provided comprehensive safety inspections; instead, his annual visits examined only the electrical functions of certain machines.[9] Every witness from the [STI] physical therapy facility acknowledged that facility employees performed daily, weekly, and monthly inspections—inspections that one would expect to note worn decks or belts. The jury learned of [Beti’s] allegations in earlier litigation that the physical therapy facility was responsible for the unreasonably dangerous condition of the treadmill.[10] ¶20 Having observed first-hand the witnesses and evidence presented, the superior court was best qualified to determine whether a new trial was warranted. See Reeves, 119 Ariz. at 163 . The superior court did not abuse its sound discretion in concluding the jury would have reached the same verdict even without presentation of the challenged evidence, and therefore did not abuse its discretion in upholding the verdict and denying Beti’s motion for a new trial. See Fischer, 242 Ariz. at 50, ¶¶ 19- 9 Beti never alleged that any electrical problem with the treadmill caused him to fall, and at oral argument, Beti’s appellate counsel conceded this was “not an electrical accident.” Further, Beti’s expert witness, Dr. Paulus, testified he did not find any electrical problem with the treadmill; instead, he identified only what he believed were mechanical problems with the treadmill. 10 We further note that AZ Therapy’s experts, by category of expertise, corresponded to those utilized by Beti; as such, any general assertion that AZ Therapy violated the “one expert per issue” rule is rejected out of hand. Further, the testimony of Leggett and Dr. Ivarsson was responsive to the observational and opinion testimony offered by Dr. Paulus and Dr. Knapp. As such, the testimony of the defense experts can hardly be characterized as impermissibly cumulative. 8  DENITANG, et al. v. ARIZONA THERAPY Decision of the Court 25. On this record, Beti’s generalized claim that he was prejudiced is simply unsupported.11 II. Alleged Witness Coaching ¶21 Beti also argues the superior court abused its discretion by not holding an evidentiary hearing on a juror’s allegation of witness “coaching.” Beti maintains he was denied a fair trial when defense counsel, Timothy L. Moulton, allegedly coached Stotts while Stotts was on the witness stand. ¶22 We will not overturn a decision regarding the conduct of a trial absent an abuse of the superior court’s discretion. See State v. Just, 138 Ariz. 534 , 550 (App. 1983). Further, we review for an abuse of discretion the superior court’s denial of an evidentiary hearing, see State v. Hidalgo, 241 Ariz. 543 , 548, ¶ 7 (2017), and the denial of a motion for new trial based on alleged witness coaching, see State v. Fullen, 1 Ariz. App. 466 , 470 (1965). ¶23 In general, a party’s failure to object at the time of an alleged error constitutes a waiver of the objection, absent fundamental error. See generally Monaco v. HealthPartners of S. Ariz., 196 Ariz. 299 , 305, ¶ 16 (App. 1999) (“Prompt objection allows the trial court to ‘impose restraints upon counsel once it appears that argument is proceeding past legitimate boundaries.’” (quoting Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434 , 453 11 At oral argument, Beti’s appellate counsel argued the testimony of Mark Hyland, the clinical director at STI, established that AZ Therapy owed a duty to Beti and others using the STI equipment based on the 2013 version of Arizona Administrative Code (“A.A.C.”) R9-10-1030 and the oral agreement and course of conduct between STI and AZ Therapy. The plain language of A.A.C. R9-10-1030 does not by itself establish such a duty on AZ Therapy’s part, and the testimony of Hyland—who conceded throughout his testimony that he did not recall any conversations with Stotts as to AZ Therapy’s responsibilities and did not know or understand what AZ Therapy did—may be generously characterized as equivocal speculation, even assuming, as we must, that he was credible. See Premier Fin. Servs. v. Citibank (Ariz.), 185 Ariz. 80 , 85 (App. 1995). Accordingly, although we do not decide the issue, we have serious doubts whether AZ Therapy voluntarily assumed a duty to Beti and other users of the treadmill to provide mechanical inspections or otherwise prevent slips, trips, and falls based on the oral agreement between AZ Therapy and STI for AZ Therapy to ensure that STI stay in compliance with State of Arizona electrical safety regulations. 9  DENITANG, et al. v. ARIZONA THERAPY Decision of the Court (1982))). Further, we will not reverse a superior court’s discretionary, factual finding that attorney misconduct did not occur or did not actually influence the verdict unless the record clearly establishes the court was incorrect. Id. at ¶ 18 (“[E]ven if we assume misconduct did occur, the trial court’s denial of appellants’ motion for new trial necessarily implies that the court did not find the misconduct of such magnitude that it actually influenced the verdict.”). ¶24 On the eighth day of trial, after Stotts testified, the superior court advised both counsel outside the presence of the jury that a juror had informed the bailiff that “she observed [AZ Therapy’s counsel] Mr. Moulton shaking his head or nodding [and] that the juror interpreted [this] to be coaching the witness [Alan Stotts].”12 The superior court noted that it “didn’t observe anything,” but suggested that, ”if somebody feels like they need to go look at FTR[13] to see what’s going on, they can . . . and then if you want to point me to specific timestamps, I’ll take a look at it.” Moulton denied having coached Stotts, and after a brief discussion, Beti’s counsel agreed, stating, “And our position, . . . I don’t think there’s any impropriety.” Beti’s counsel then stated he did not “want to investigate if Mr. Moulton did something wr[o]ng,” but requested that he be allowed to “look at some case law tonight just to see if there’s any issues” and “to preserve anything that we need to do given what was reported.” ¶25 Later that evening, AZ Therapy emailed the court and Beti’s counsel, moving for a mistrial or other curative measures on the basis that it had been, or was likely to be, prejudiced by the juror’s observations. Before trial continued the next morning, the court addressed the motion, noting that “one of the proposals was that we remove that juror as an alternate.” Counsel for Beti objected to both the motion for a mistrial and removal of the juror as a curative measure. After a lengthy discussion, during which neither party requested the court hold an evidentiary hearing 12 The court did not provide either counsel with the juror’s identity. 13 In general, FTR, or “For the Record,” is a digital video recording system used to record court proceedings, often in lieu of a court reporter. Gersten v. Gersten, 223 Ariz. 99 , 101, ¶ 3 (App. 2009). 10  DENITANG, et al. v. ARIZONA THERAPY Decision of the Court or otherwise question the juror,14 the court denied the motion.15 As part of the discussion, both parties agreed not to mention the juror’s allegation during closing argument, and the court agreed to modify a standard jury instruction to address the issue. The modified jury instruction stated, “The lawyers’ questions, arguments, and conduct are not evidence. You should not consider those things when reaching your verdict.” (Emphasis added.) Counsel for both parties agreed to this modified instruction, which the court read to the jury as part of the court’s final instructions. ¶26 After the jury rendered its verdict and the court issued its judgment in favor of AZ Therapy, Beti moved for a new trial and a related evidentiary hearing, arguing in part that defense counsel had “improperly coached defendant Alan Stotts during cross-examination.” ¶27 The superior court denied Beti’s request for an evidentiary hearing, noting, “The FTR recording exists, and the Court is able to review it. [Beti] did not explain what other evidence would warrant an evidentiary hearing on this issue.” Beti then filed a second request for an evidentiary hearing, based in part on an alleged unrelated error in the certified transcript16 and in part on Beti’s previous allegation of witness coaching, and the court again denied Beti’s request: 14 Although neither party raised the issue of separately questioning the juror, the superior court nonetheless stated it was not inclined to do so, out of concern that such questioning would simply highlight the issue to the juror and, even with instructions not to consider the issue, might create prejudice where none existed. AZ Therapy’s counsel expressed agreement with the court’s stance as to this issue, and Beti’s counsel did not object. 15 During the discussion, counsel for Beti stated she had not reviewed the recording of the previous day’s proceedings, but stated, “I know [the court] reviewed it.” The court corrected counsel’s misperception, clarifying it had not done so and reminding counsel, “That’s why I brought it to your attention; so if you guys thought it was something you wanted to look at, you could. And then you could tell me y[ea] or nay we think something inappropriate happened.” The court also noted that, given the limitations of the court’s recording system, it was unlikely any improper conduct, even if it did occur, had been recorded. 16 In Beti’s reply to AZ Therapy’s response to his motion for new trial, Beti pointed to a portion of the July 16, 2019 (Day 7) trial transcript that 11  DENITANG, et al. v. ARIZONA THERAPY Decision of the Court [Beti] did not identify any evidence or testimony he would present at such a hearing. [Beti] did not indicate whether his counsel reviewed the FTR recording of the portion of the trial at issue, whether counsel has contacted the court reporte[r] about the issue, or whether his counsel disputed [AZ Therapy’s] assertions. The Court will not schedule an evidentiary hearing without such information. ¶28 The superior court then denied Beti’s new trial motion, rejecting Beti’s argument on “witness coaching”: A juror told Court staff that the juror believed one of [AZ Therapy’s] lawyers was coaching [Stotts] via nods and headshakes while he testified. The Court reviewed the FTR recording of the alleged coaching and did not see any improper behavior. [Counsel for Beti] tacitly conceded in her Motion [for New Trial] that the recording is benign. If any coaching occurred, it was not significant. Moreover, the alleged coaching appeared to harm the juror’s impression of defense counsel more than anything else. The Court cannot discern, and [Beti] did not suggest, any way in which purported coaching affected the witness’ testimony. Indeed, [Beti] opposed [AZ Therapy’s] motion for a mistrial after the Court disclosed the juror’s comments. If [Beti] believed that the alleged coaching prevented a fair trial, then [Beti] would have endorsed starting anew. ¶29 Beti argues the superior court abused its discretion in denying his requests for an evidentiary hearing in support of his motion for a new trial. Even assuming arguendo that Beti did not waive his argument by (1) indicated AZ Therapy’s counsel elicited testimony from Dr. Ivarsson as both a “mechanical engineer” and a “biomechanical engineer.” Beti argued Dr. Ivarsson’s testimony was duplicative if he testified in both engineering capacities because Timothy Leggett had testified as AZ Therapy’s mechanical engineering expert. AZ Therapy disputed the accuracy of the transcript, arguing counsel had said “biomechanical engineer” in both questions to Dr. Ivarsson, and moved to correct the record. After reviewing the FTR recording of the portion of the trial at issue, the court concluded AZ Therapy’s counsel had used the term “biomechanical engineer” in both instances and Beti had effectively conceded this point by failing to respond to the motion. The court granted AZ Therapy’s motion to correct the record by replacing the word “mechanical” with the word “biomechanical.” 12  DENITANG, et al. v. ARIZONA THERAPY Decision of the Court initially conceding that no impropriety had occurred, (2) failing to review the FTR recording before trial the next day, (3) objecting to both AZ Therapy’s motion for a mistrial and removal of the juror as a curative measure, (4) failing to timely request the court hold an evidentiary hearing or otherwise question the juror, and (5) agreeing that modification of the final jury instructions would suffice as a precautionary curative measure, we find no error. ¶30 In deciding Beti’s motion for a new trial, the superior court reviewed the portion of the July 17, 2019 FTR video at issue (from 2:15 p.m. to 2:30 p.m.) and “did not see any improper behavior.” We have also reviewed that same portion of the FTR recording, which was submitted pursuant to this court’s order, and to the extent we were able to view counsel and the witness, observed nothing that would support a claim of witness coaching. Beti’s attorneys had an opportunity to view the same FTR video before requesting an evidentiary hearing, but apparently failed to do so, and outside of the jury member’s allegation, they have provided nothing except speculation to support their accusation that improper and potentially prejudicial witness coaching occurred. We will not reverse based on mere unsupported speculation of prejudice, see E. Camelback Homeowners Ass’n v. Ariz. Found. for Neurology & Psychiatry, 18 Ariz. App. 121 , 128 (1972), and do not approve of counsel failing to raise or fully litigate an issue before the superior court in the hope that, if they fail to win their case on its merits, they have an “ace in the hole” to rely on as a means of securing reversal on appeal, see State v. Henderson, 210 Ariz. 561 , 567, ¶ 19 (2005) (disapproving of a defendant “taking his chances on a favorable verdict, reserving the ‘hole card’ of a later appeal on a matter that was curable at trial, and then seeking appellate reversal” (brackets and citation omitted)); Kinman v. Grousky, 46 Ariz. 191 , 193 (1935) (noting that such a practice is “obviously unfair to a busy trial judge and certainly not in furtherance of justice and the determination of cases on their merits”). ¶31 On this record, the superior court did not abuse its discretion in denying Beti’s requests for an evidentiary hearing or otherwise err in denying Beti’s new trial motion on the basis of the juror’s allegation of “witness coaching” by AZ Therapy’s counsel. III. Standing While Objecting ¶32 Beti also argues error occurred because AZ Therapy’s counsel stood to make objections. We discern no error. 13  DENITANG, et al. v. ARIZONA THERAPY Decision of the Court ¶33 We will not overturn a decision regarding the conduct of a trial absent an abuse of the superior court’s discretion. See Just, 138 Ariz. at 550 . ¶34 On the second day of trial, the superior court requested that AZ Therapy’s counsel stand when making an objection, stating, “Counsel, if you stand when you make an objection, it will trigger the witness [to either not answer or stop talking], and it will also give me an opportunity to see if there’s an objection.”17 AZ Therapy’s counsel agreed to do so. Later that same day, the court reminded both counsel: Oh, and I did make a statement during the testimony, but just for both of you. If you are making an objection, it’s much better for me if you stand, because I’m either looking at the witness [or] I may be pulling up an exhibit, so I’ll see somebody stand up out of my peripheral vision, and I can either stop a witness from answering, or I’ll be able to address it much more effectively that way. Plus, it will also signal to the witness that there’s something about to happen, and he or she probably will stop. And if they don’t stop, I’ll interrupt them. ¶35 On the eighth day of trial, Beti’s counsel objected to AZ Therapy’s counsel standing while making objections. The court denied the objection, explaining that counsel “doesn’t want a witness to answer something that he finds objectionable.” Later that day, the court reminded Beti’s counsel to do the same, stating, “By the way, again, as I explained earlier, could you stand when you state an objection so we’re all aware that the objection is coming?” Beti’s counsel also agreed to do so. ¶36 In this case, by standing when making an objection, AZ Therapy’s counsel merely followed the superior court’s instruction that counsel stand to make objections. Beti does not explain how he was prejudiced by this common-sense procedure, and we find no error in its application. 17 In its answering brief, AZ Therapy represents, without citation to the record, that on the last page of the superior court’s “Protocols,” the court had previously directed the attorneys to stand when making objections. Beti does not dispute this unsupported representation in his reply brief. 14  DENITANG, et al. v. ARIZONA THERAPY Decision of the Court CONCLUSION ¶37 The superior court’s judgment is affirmed. AMY M. WOOD • Clerk of the Court FILED: AA 15

2020-12-01 13:06:07.452024+00

https://www.mass.gov/files/documents/2020/11/30/h11985.pdf

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; [email protected] SJC-11985 COMMONWEALTH vs. QUOIZEL L. WILSON. Barnstable. March 6, 2020. - November 30, 2020. Present: Gants, C.J., Lenk, Lowy, Cypher, & Kafker, JJ. 1 Homicide. Cellular Telephone. Practice, Criminal, Motion to suppress, Affidavit, Warrant, Assistance of counsel, Capital case. Search and Seizure, Affidavit, Warrant, Fruits of illegal search. Constitutional Law, Search and seizure, Assistance of counsel. Indictments found and returned in the Superior Court Department on November 12, 2013. A pretrial motion to suppress evidence was heard by Gary A. Nickerson, J., a motion for reconsideration was considered by him, and the cases were tried before him; and a motion for a new trial, filed on August 2, 2018, was considered by Robert C. Rufo, J. Janet Hetherwick Pumphrey for the defendant. Elizabeth A. Sweeney, Assistant District Attorney, for the Commonwealth. 1 Chief Justice Gants participated in the deliberation on this case prior to his death.  2 CYPHER, J. A jury convicted the defendant, Quoizel L. Wilson, of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty, after he shot the victim, Trudie Hall, multiple times in the torso, killing her. The defendant also was convicted of assault and battery by means of a dangerous weapon and improper disposition of a human body. The defendant raises two primary arguments: (1) his cell site location information (CSLI) should have been suppressed because originally it was obtained by police without a warrant and a subsequent search for the same information pursuant to a warrant was tainted by the initial warrantless search; and (2) his trial counsel provided ineffective assistance by failing to move to suppress the fruits of the initial warrantless CSLI search. We consolidated the defendant's direct appeal with the appeal from the denial of his motion for a new trial, and we now affirm. We also decline to grant extraordinary relief pursuant to G. L. c. 278, § 33E. Background. 1. Facts. We summarize the facts the jury could have found, reserving certain facts for later discussion. On July 27, 2010, Hall, a Nantucket resident, traveled to Hyannis, where she and her husband, Ram Rimal, checked into separate rooms at the Bayside Resort hotel. The two were scheduled to attend an appointment in Boston the following day. Rimal had rented a vehicle. He and Hall drove to a mall to see  3 a movie together, and then bought take-out food for dinner. Afterward, they returned to the hotel; Rimal went to his room, and Hall took the rental vehicle, saying she had to print some things. That was the last time Rimal saw her. The following morning Rimal unsuccessfully tried to reach Hall by cellular telephone (cell phone). Hall was not in her hotel room, but the bed appeared to have been slept in, and Hall had left a shopping bag containing clothes and money in the room. Rimal contacted Hall's mother, Vivienne Walker, and the two reported Hall's disappearance to police. Rimal later obtained call records for Hall's cell phone, and Walker tried calling the numbers Hall most recently had contacted. One of the telephone numbers belonged to the defendant. Walker later gave the list of telephone numbers to police. Hall was five months pregnant at the time of her disappearance. She had been having an affair with the defendant, who also was married. Walker also had received a telephone call from an unknown woman who made "slander-ish" remarks about Hall's pregnancy. Walker told police she thought the caller was the wife of the father of Hall's baby. On July 29, 2010, police located the rental vehicle in a commuter parking lot by Route 6. The interior of the vehicle was stained with a significant amount of human blood, later shown to belong to Hall, consistent with a fatal amount of blood  4 loss if left untreated. Among other things, police recovered from the vehicle a copper jacket fragment from a spent projectile, two lead fragments, and one lead core portion of a spent projectile, apparent bone fragments, and a piece of human flesh. The copper jacket fragment was fired from a .38 caliber class weapon, which could include a nine millimeter handgun. The defendant was the registered owner of a nine millimeter Beretta 92FS pistol; records showed that the pistol had not been reported missing. The defendant also previously had made statements in front of friends implying that he carried a gun with sixteen rounds, consistent with a nine millimeter Beretta 92FS pistol. Hall had told a friend that she thought the defendant was the father of her unborn child and that he wanted her to get an abortion.2 On July 29, 2010, someone sent a message from the victim's social media account, claiming she was in the hospital after an abortion. Police determined that Hall was not a patient at any area hospital. At about 1 A.M. on July 30, 2010, police spoke with the defendant on the front steps of his house. His wife was in the house at the time. The defendant told police that he was a 2 An analysis of the fetal skeletal remains later confirmed that the defendant was the father.  5 friend of Hall and admitted that he had seen her at the hotel on July 27, but he denied having any sexual relationship with her. On August 2, 2010, police obtained cell phone subscriber information and call logs for Hall, the defendant, and another number belonging to the defendant's wife. The records showed numerous calls and text messages between Hall and the defendant on July 27, until about 10 P.M. Between 10:09 and 10:18 P.M., Hall made eleven calls, each lasting only seconds, to a telephone number belonging to Mawande Senene. The activity on Hall's telephone ceased at 10:49 P.M. Police interviewed Senene on August 2, and he stated he had noticed the calls, but did not pick up because he did not recognize the number. He said he had a voicemail from a "Rudy," "Trudie," or "Judy," asking him to call her back, but he did not. Instead, he called the defendant because he recognized the number as a Nantucket exchange, and he knew the defendant used to live there. On August 3, 2010, police obtained additional cell phone records that included CSLI 3 for the same three numbers belonging 3 The term "CSLI" (cell site location information) refers to "a cellular telephone service record or records that contain information identifying the base station towers and sectors that receive transmissions from a [cellular] telephone" (citation omitted). Commonwealth v. Fredericq, 482 Mass. 70 , 71 n.2 (2019). "It may be used to identify the approximate location of the cellular telephone based on the telephone's communication with a particular cell site." Id.  6 to Hall, the defendant, and the defendant's wife. 4 The defendant's CSLI placed him at the victim's hotel, at the commuter lot where the rental vehicle was found, and in the location where the victim's body would later be discovered, at relevant times on the night of the murder. The CSLI also showed that Hall's cell phone and the defendant's cell phone traveled together throughout the evening of July 27. The defendant was interviewed by police for the second time on August 3, 2010, at his own request. During the interview, which was recorded, the defendant admitted that he had been having an affair with Hall, but insisted he had been at home the night of the murder. After being confronted with the fact that police had information (based on the CSLI) showing that he was not at home, the defendant stated that he had been driving on the Service Road that night to sell cocaine to a friend named J.D. Lang. Police interviewed Lang on August 4, 2010. Lang at first stated that he had met up with the defendant the night of the murder, but later admitted that he had been lying and that the defendant had called him and asked him to give that false story 4 In order to access the CSLI, police obtained an order pursuant to the Stored Communications Act, 18 U.S.C. § 2703 (d). The § 2703(d) order was obtained by orally presenting information to a judge in chambers. No written affidavit was submitted in support of the application.  7 if someone called asking about him. Police also interviewed Senene again on August 4, 2010. Senene then told police that on July 29, the defendant had requested that Senene meet him at his house, and when Senene arrived, the defendant had asked him to lie and say he was with the defendant the night of July 27. Senene refused. Police interviewed the defendant again on August 5, 2010, the same day that they executed a search warrant for the defendant's home. During the interview, the defendant repeated his claims that he had met with Hall at the hotel the afternoon of July 27, and denied meeting with her later in the evening. He repeated his assertion that he had met with Lang later that evening to sell him drugs. Even after being confronted with information (derived from the CSLI) that contradicted his claims, the defendant insisted on his version of events. Hall's remains were discovered nearly two years after the murder by a man walking his dog in a wooded area near a water tower off Hayway Road in Falmouth.5 Hall's skeleton showed damage consistent with gunshot trauma. The trauma indicated that the bullets traveled from the back or side of Hall's body toward the front. 5 Employment records showed that Hayway Road was on the defendant's recycling collections truck route.  8 Seven jacketed spent projectiles and one jacket from a spent projectile were recovered from the scene at Hayway Road, all of which were .38 caliber ammunition bearing markings consistent with having been shot from a Beretta model 92. The medical examiner determined that the cause of death was gunshot wounds to the torso. In 2014, police acquired a search warrant to obtain the same CSLI information that they previously had obtained in 2010 pursuant to a § 2703 order. 2. Procedural background. Prior to trial, the defendant moved to suppress all of the cell phone records obtained by the Commonwealth. The trial judge denied the motion, determining that the defendant lacked standing to challenge the Commonwealth's access to records other than his own; that the defendant had no reasonable expectation of privacy in his subscriber and call records; and that although the defendant did have a reasonable expectation of privacy in his own CSLI, there was no constitutional violation because "[t]he facts known to [police] as of August 3rd, and conveyed [orally] to [the judge who authorized the order], established probable cause for the issuance of an order compelling the disclosure of CSLI data." The defendant moved for reconsideration, which was denied. A single justice of this court denied the defendant's application for leave to prosecute an interlocutory appeal. The  9 defendant renewed his objection to the admission of the cell phone records during trial. In May of 2015, after a jury trial, the defendant was convicted on all counts. He timely appealed. On August 2, 2018, the defendant filed a motion for a new trial and for an evidentiary hearing, arguing that under the United States Supreme Court's opinion in Carpenter v. United States, 138 S. Ct. 2206 (2018), and this court's prior decision in Commonwealth v. Augustine, 467 Mass. 230 (2014) (Augustine I), S.C., 470 Mass. 837 and 472 Mass. 448 (2015), it was error not to suppress his CSLI. The defendant further argued that his trial counsel provided ineffective assistance by failing to move to suppress a variety of evidence as "fruits" of the illegal search. The motion judge, who was not the trial judge, denied the motion. The defendant's appeal from the denial of his motion for a new trial was consolidated with his direct appeal. Discussion. 1. Standard of review. When considering a defendant's direct appeal from a conviction of murder in the first degree along with an appeal from the denial of a motion for a new trial, we review the entire case pursuant to G. L. c. 278, § 33E. See, e.g., Commonwealth v. Upton, 484 Mass. 155 , 159–160 (2020); Commonwealth v. Goitia, 480 Mass. 763 , 768 (2018). In so doing, we review "raised or preserved issues according to their constitutional or common-law standard and analyze any unraised, unpreserved, or unargued errors, and other  10 errors we discover after a comprehensive review of the entire record, for a substantial likelihood of a miscarriage of justice." Upton, supra at 160, citing Commonwealth v. Brown, 477 Mass. 805 , 821 (2017), cert. denied, 139 S. Ct. 54 (2018). "For an error to have created a substantial likelihood of a miscarriage of justice, it must have been likely to have influenced the jury's conclusion" (quotation and citation omitted). Upton, supra. 2. Suppression of the defendant's CSLI. The defendant first contends that the trial judge erred in failing to suppress his CSLI, and that the motion judge erred in denying the defendant's motion for a new trial and for an evidentiary hearing on this same basis, particularly in light of the United States Supreme Court's opinion in Carpenter, supra, and this court's prior opinion in Augustine I, supra. 6 When reviewing a decision on a motion to suppress, we accept the judge's findings of fact absent clear error, but we conduct "an independent determination as to the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Estabrook, 472 Mass. 852 , 857 6 The parties do not dispute that the holdings in Carpenter v. United States, 138 S. Ct. 2206 (2018), and Commonwealth v. Augustine, 467 Mass. 230 (2014) (Augustine I), S.C., 470 Mass. 837 and 472 Mass. 448 (2015), apply retroactively to the CSLI search at issue here.  11 (2015), quoting Commonwealth v. Watson, 455 Mass. 246 , 250 (2009). With respect to a motion for a new trial, we "examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Wright, 469 Mass. 447 , 461 (2014), quoting Commonwealth v. Weichell, 446 Mass. 785 , 799 (2006). "If the motion judge did not preside at the trial, we defer only to the judge's credibility determinations and 'regard ourselves in as good a position as the motion judge to assess the trial record.'" Wright, supra, quoting Weichell, supra. In Carpenter, the Supreme Court held that "[g]iven the unique nature of cell phone location records, . . . an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI," and therefore, where the government seeks access to at least seven days' worth of such information, as it did in that case, that access constitutes a search for purposes of the Fourth Amendment to the United States Constitution. Carpenter, 138 S. Ct. at 2217 & n.3. In such circumstances, the Court held that "the Government's obligation is a familiar one -- get a warrant." Id. at 2221 . The Court also concluded that a court order to obtain such information under the Stored Communications Act, 18 U.S.C. § 2703 , which required the government to show "reasonable grounds" that the information was "relevant and  12 material to an ongoing investigation," "falls well short of the probable cause required for a warrant." Id. Significantly, although the Court held that government requests for CSLI were generally subject to the warrant requirement under the Fourth Amendment, the Court explicitly recognized that "case-specific exceptions may support a warrantless search of an individual's [CSLI] records under certain circumstances." Id. at 2222. The Court discussed one such "well-recognized exception" for exigent circumstances, suggesting that other well-recognized exceptions also might apply. Id. In Augustine I, we held that the warrant requirement of art. 14 of the Massachusetts Declaration of Rights applied to a situation where the Commonwealth sought a two-week period of historical CSLI. 7 Augustine I, 467 Mass. at 232. 8 There, we 7 The term "historical CSLI" refers to "information that has already been generated when the data are requested," as opposed to "prospective CSLI," which refers to "location data that will be generated sometime after the order authorizing its disclosure." Fredericq, 482 Mass. at 77 n.6, citing Augustine I, 467 Mass. at 240 n.24. 8 We also have held that, "assuming compliance with the requirements of 18 U.S.C. § 2703 , the Commonwealth may obtain historical CSLI for a period of six hours or less relating to an identified person's cellular telephone from the cellular service provider without obtaining a search warrant, because such a request does not violate the person's constitutionally protected expectation of privacy." Commonwealth v. Estabrook, 472 Mass. 852 , 858 (2015).  13 remanded the case for a determination whether the written affidavit submitted in support of the Commonwealth's application for an order under 18 U.S.C. § 2703 (d) demonstrated probable cause with respect to the records at issue. Id. We also have had occasion to apply exceptions to the exclusionary rule under art. 14 in the context of CSLI. See Commonwealth v. Fredericq, 482 Mass. 70 , 85 (2019) (Commonwealth failed to show that attenuation doctrine applied to fruits of search of defendant's residence, where defendant's consent to search was "intimately intertwined" with information gleaned from prior warrantless CSLI search); Estabrook, 472 Mass. at 865, 870 (Commonwealth met its burden under "independent source" doctrine to show that CSLI search pursuant to warrant was untainted by prior warrantless search for same information). The "independent source" doctrine is a well-recognized exception to the exclusionary rule under both the Fourth Amendment and art. 14. See Murray v. United States, 487 U.S. 533 , 537 (1988); Commonwealth v. DeJesus, 439 Mass. 616 , 624-625 (2003), and cases cited. Pursuant to that doctrine, "evidence initially discovered as a consequence of an unlawful search may be admissible if later acquired independently by lawful means untainted by the initial illegality." DeJesus, supra at 624.  14 In DeJesus and other recent cases applying the independent source doctrine, we have focused our analysis on whether "the affidavit in support of the application for a search warrant contains information sufficient to establish probable cause . . . apart from [information obtained from the prior illegal search]." DeJesus, 439 Mass. at 625. See Estabrook, 472 Mass. at 866 (same); Commonwealth v. Tyree, 455 Mass. 676 , 692 (2010) (same). 9 The defendant urges us to conduct a similar analysis in 9 A case currently pending before this court on further appellate review raises the issue whether, in cases such as Estabrook and Commonwealth v. Tyree, 455 Mass. 676 (2010), we have inappropriately omitted an additional, subjective prong of the independent source analysis discussed in Murray v. United States, 487 U.S. 533 , 542-543 (1988), namely, whether the officers would have sought the warrant absent information obtained in the initial illegal search. See Commonwealth vs. Pearson, No. SJC-12930. The defendant has not raised such an argument here. Nonetheless, having considered the issue as part of our plenary review under G. L. c. 278, § 33E, we conclude that this case does not require us to resolve the open questions regarding the applicability and contours of such a subjective prong. Rather, even assuming that such questions would be resolved in the manner most favorable to the defendant, we conclude that there is no substantial likelihood of a miscarriage of justice in this case, where the record provides ample support for the conclusion that the officers would have sought the warrant even in the absence of the CSLI obtained in the initial illegal search. Among other things, call logs obtained before the illegally obtained CSLI established that the defendant's cell phone had communicated with the victim's cell phone multiple times on the day of her disappearance, and police had information that the defendant, who was married to another woman, was the father of the victim's unborn child. In the circumstances, "[t]here can be no doubt that the police were committed to an investigation" of the defendant's whereabouts on the night of the murder, and they "would have sought the search warrant with or without [the illegally obtained CSLI]." Commonwealth v. DeJesus, 439 Mass. 616 , 627 n.11 (2003).  15 this case and to conclude that without the tainted CSLI, the warrant obtained in 2014 lacked probable cause. Here, we proceed from the premise that the 2010 CSLI search violated the requirements of G. L. c. 276 and art. 14 because police did not obtain a search warrant, and the application for the § 2703(d) order was not accompanied by a written affidavit demonstrating probable cause. See Augustine I, 467 Mass. at 232. The absence of a written affidavit was not a mere technical violation. See Commonwealth v. Sheppard, 394 Mass. 381 , 388-389 (1985). Nonetheless, the CSLI need not be suppressed if the 2014 search pursuant to a warrant satisfied the "independent source" doctrine. As noted, the defendant's sole argument in this regard is that, when stripped of information gleaned from the prior illegal search, the 2014 warrant affidavit lacked probable cause. We disagree, concluding instead, as the motion judge did, that "[t]he affidavit in support of the 2014 warrant sets out ample probable cause derived from wholly untainted facts known to police before the August 3, 2010 acquisition of the defendant's CSLI." See Estabrook, 472 Mass. at 870. As summarized by the motion judge in his decision denying the defendant's motion for a new trial, the untainted facts in the affidavit accompanying the application for the search warrant showed that  16 "the victim was likely murdered using a class of firearms which included [nine millimeter] handguns; the defendant made public statements implying that he carried a gun with [sixteen] rounds, consistent with a [nine millimeter] Beretta 92FS pistol; firearms records showed that the defendant registered a [nine millimeter] Beretta 92FS pistol which had not been reported missing; the defendant was the likely father of the victim's unborn child, causing financial obligations to the victim and the ire of the defendant's wife; the victim told her friend that the defendant asked her to get an abortion; the defendant and the victim communicated extensively by cellphone throughout July 27, until shortly before the victim's cellphone activity ceased at 10:49 P.M.; and someone, probably not the victim, sent a Facebook message from the victim's account on July 29, after she was reported missing, claiming she was in the hospital after an abortion, although police determined that she was not a patient at any area hospitals." For all of these reasons, the trial judge did not err in denying the defendant's motion to suppress the defendant's CSLI, and the motion judge did not abuse his discretion in denying the defendant's motion for a new trial and for an evidentiary hearing on this issue. 10 3. Ineffective assistance of counsel. The defendant next contends that his trial counsel provided constitutionally ineffective assistance by failing to move to suppress the fruits 10In his decision on the defendant's motion for a new trial, the motion judge also concluded that the disputed CSLI was admissible under the "good faith" exception to the Fourth Amendment. The Commonwealth urges this court to reach a similar conclusion and to adopt, for the first time, a good faith exception under art. 14. Because we conclude that the independent source doctrine supports the admissibility of the CSLI, we decline at this time to address the issue of the good faith exception.  17 of the initial warrantless search of the defendant's CSLI. Ordinarily, to establish ineffective assistance of counsel, a defendant must show that there has been a "serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling below that which might be expected from an ordinary fallible lawyer," and that such behavior "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89 , 96 (1974). However, where a defendant has been convicted of murder in the first degree, we apply a standard more favorable to the defendant, determining whether counsel's errors, if any, created a substantial likelihood of a miscarriage of justice. See, e.g., Commonwealth v. Simon, 481 Mass. 861 , 866-867 (2019), and cases cited. See also Commonwealth v. Wright, 411 Mass. 678 , 682 (1992) ("the statutory standard of § 33E is more favorable to a defendant than is the constitutional standard for determining the ineffectiveness of counsel"). Here, the motion judge issued a detailed written decision on the defendant's motion for a new trial, in which he analyzed each category of challenged evidence individually to determine whether it was purged of the taint of the illegal CSLI search. 11 11As summarized by the motion judge, the challenged evidence included  18 This approach was consistent with our observation in Estabrook, 472 Mass. at 860, that the "crucial question" regarding "whether a particular statement must be suppressed as the fruit of [an] initial illegal search of [the defendant's] CSLI is whether that statement has been come at by exploitation of . . . [the illegal search] or instead by means sufficiently distinguishable to be purged of the primary taint" (quotation and citation omitted). As a result of this analysis, the motion judge concluded that only two categories of evidence were tainted by the initial, warrantless CSLI search and thus subject to suppression under the exclusionary rule: (1) the defendant's statements to police during the August 3, 2010, interview after he was confronted with the illegally obtained CSLI; and (2) the defendant's "the trial testimony of Mawande Senene and any references thereto; the trial testimony of Joseph 'J.D.' Lang, and any references thereto; Detective [Marc] Powell's trial testimony referencing Senene and Lang; the defendant's statement to police on August 5, 2010 that he only called his wife one time on July 27, 2010; the entirety of the defendant's statements to police on August 3, 2010; any references to the defendant's [sport utility vehicle], car or motorcycle or items seized therefrom, including cellphones; any references to anything seized from the defendant's home, including cellphones, a towel with red- brown stains, and handgun-related accessories; the testimony of [a] firearm dealer; the testimony of [a] Barnstable town employee who issued the defendant's firing range permit; the defendant's range permit and firearms records; and all evidence that the defendant formerly owned firearms and practiced at a firing range."  19 statements during the August 5, 2010, interview in response to questions based on the illegally obtained CSLI. The motion judge then assessed the effect of the tainted evidence on the jury to determine whether trial counsel's failure to move to suppress the evidence deprived the defendant of a substantial ground of defense. See Saferian, 366 Mass. at 96 . After determining that the statements at issue were "relevant only to consciousness of guilt" and that they were "merely cumulative of other substantial evidence," the motion judge concluded that the statements "had minimal, if any, effects on the jury such that the error was non-prejudicial." We find no fault with the motion judge's analysis or conclusions in this regard. And for the same reasons the motion judge concluded that admission of the tainted evidence was nonprejudicial, we conclude that any error in admitting the tainted evidence was unlikely to have influenced the jury's decision for purposes of our § 33E analysis. See Commonwealth v. Hobbs, 482 Mass. 538 , 556 (2019) (no substantial likelihood of miscarriage of justice where testimony at issue was cumulative of other evidence and did not likely influence jury's conclusion); Commonwealth v. Brown, 474 Mass. 576 , 586 (2016) (no substantial likelihood of miscarriage of justice where erroneously admitted evidence did not likely influence jury's conclusion). Here, in light of the substantial evidence against  20 the defendant -- including the defendant's CSLI, which was admitted properly for the reasons discussed supra, placing the defendant at the victim's hotel, at the commuter lot where the rental vehicle was found, and in the location where the victim's body was discovered, all at relevant times on the night of the murder -- trial counsel's failure to move to suppress the fruits of the initial illegal search did not result in a substantial likelihood of a miscarriage of justice. 4. Review pursuant to G. L. c. 278, § 33E. Finally, after conducting a thorough review of the record pursuant to G. L. c. 278, § 33E, we decline to exercise our authority to grant a new trial or to reduce or set aside the jury's verdict of murder in the first degree. Conclusion. For the foregoing reasons, we affirm the defendant's convictions and the denial of the defendant's motion for a new trial and for an evidentiary hearing. So ordered.

2020-12-01 13:06:07.52411+00

https://www.mass.gov/files/documents/2020/11/30/h11702a.pdf

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; [email protected] SJC-11702 COMMONWEALTH vs. FREDERICK HENDERSON. Suffolk. November 8, 2019. - November 30, 2020. Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ. 1 Homicide. Firearms. Constitutional Law, Assistance of counsel, Identification. Identification. Evidence, Identity, Exculpatory, Expert opinion, Motive, Testimony before grand jury. Witness, Expert. Jury and Jurors. Practice, Criminal, Capital case, Assistance of counsel, Instructions to jury, Argument by prosecutor, Transcript of testimony before grand jury, Grand jury proceedings, Jury and jurors, Challenge to jurors, Voir dire. Indictments found and returned in the Superior Court Department on December 19, 2011. The cases were tried before Patrick F. Brady, J.; a motion for a new trial, filed on February 11, 2015, was considered by William F. Sullivan, J., and a motion for reconsideration was heard by him. Dennis Shedd for the defendant. Cailin M. Campbell, Assistant District Attorney, for the Commonwealth. 1 Chief Justice Gants participated in the deliberation on this case prior to his death.  2 GAZIANO, J. A Superior Court jury convicted the defendant of murder in the first degree on a theory of deliberate premeditation. The jury also convicted the defendant of unlawful possession of a firearm. The Commonwealth alleged that the defendant and his codefendant fatally shot the victim, Derrick Barnes, when Barnes returned to his former neighborhood to visit with family and friends. 2 The motive for the killing, according to the Commonwealth, was that the victim had "snitched" to law enforcement in an unrelated case. The defendant asserted an alibi defense by presenting evidence that he dropped his niece off at a church event around the time of the shooting. On appeal, the defendant challenges the convictions on grounds of ineffective assistance of counsel. The defendant contends as well that he is entitled to a new trial because the judge erred in allowing the introduction of certain evidence, and because the judge abused his discretion in allowing the prosecutor to exercise a peremptory challenge. For the reasons that follow, we affirm the convictions and conclude that relief under G. L. c. 278, § 33E, is not warranted. 2 At a joint trial with the defendant, the codefendant was convicted of murder in the first degree and unlawful possession of a firearm. We affirmed the convictions. See Commonwealth v. Herndon, 475 Mass. 324 , 337 (2016).  3 1. Background. We recite the facts the jury could have found, reserving certain details for our discussion of particular issues. The victim and his brother, Darryl Barnes, 3 grew up in the Dorchester section of Boston. In 2009, the victim testified in an unrelated criminal trial, and then moved to a town outside Boston. Thereafter, the victim rarely visited his old neighborhood. The defendant and the codefendant, who were friends, lived on the same street in the victim's former neighborhood. The defendant was known by the nickname "Drano," while the codefendant was known as "Jigga." During the time that the victim lived on the defendant's street, he "hung out" with the defendant and the codefendant. On August 27, 2011, the day of a large festival in Boston, the victim and his brother returned to their former address to visit family and friends. The brothers met up with their cousin, Rondale Williams, and some friends. Darryl left to drive another cousin home. The victim and Williams continued to walk down the street, and stopped to talk to Shantee Griffin. Griffin, who had lived at her mother's house, at no. 14, for two years, knew Williams, and the victim was introduced to her as "Doughboy." Eventually, the victim, Williams, another man, and 3 Because they share a last name, we refer to the victim's brother, Darryl Barnes, by his first name.  4 a woman gathered on the front porch of no. 11. Griffin, who had left the victim and Williams, stood on the sidewalk in front of a house located across the street. 4 At 7:05 P.M., two men, later identified as the defendant and the codefendant, walked down the street and stopped in front of no. 11. The victim and the codefendant got into an argument. The victim said, "I'm saying, mother, you want to holler at me, holler at me then." The codefendant asked, "[N]ow, what's up with that rattin' shit?" After this exchange, the codefendant and the defendant, standing side by side on the sidewalk, pulled out handguns and fired multiple shots at the victim. The victim dropped to the floor. Both assailants walked away from the porch. The codefendant turned around, approached the fallen victim, and shot him again at close range. The victim suffered five gunshot wounds, including a fatal wound to the head. Griffin telephoned 911 and then attempted to aid the victim until police and emergency medical services arrived. At the scene she told police that she had heard shots from across the street but had not seen the shooter. She also provided police 4 In a police interview and in her grand jury testimony, Griffin said that she had been positioned "across the street" from the house at no. 11, in the area of the houses at nos. 10- 12. While the motion judge found that Griffin had been standing outside her house at no. 14, home surveillance videotape footage later revealed that Griffin actually had been standing farther down the street, in front of no. 6.  5 with her telephone number. During a telephone interview on the evening of the shooting, Griffin told police the names of the two shooters. Williams was interviewed by police approximately a week after the shooting. He told police that he had been on the porch with the victim when the defendant and codefendant walked up onto the porch. The codefendant pulled out a gun and shot the victim, and then shot him again after he fell. Police collected three expended .32 caliber shell casings at the crime scene, and recovered two .32 caliber projectiles from the victim's body. The casings were fired from the same firearm. The two projectiles, however, had been fired from two different weapons. At trial, the Commonwealth called Williams and Griffin as eyewitnesses. Williams knew both the defendant and the codefendant. He had met the defendant in 2005, when the defendant "was going through a situation" and came to live with one of Williams's relatives. He had known the codefendant for approximately fifteen years. Williams testified that he had been on the front porch with the victim immediately prior to the shooting. He did not hear an argument prior to the gunfire. Williams testified that he could not identify anyone because he never looked at either gunman's face. He also said that he had been highly intoxicated that evening from drinking vodka, smoking marijuana, and "popping" pills, and that he had been  6 "rolling a blunt" when the shooters walked up. Williams also testified that he could not remember talking to police the week after the shooting, when he identified the codefendant as the shooter. Griffin testified that she did not know the defendant or the codefendant. She said that she had heard gunshots, but did not see the shooting because she was looking in the opposite direction and, in any event, her view across the street had been obstructed. She also testified that she had been pressured by a detective to testify falsely before the grand jury and to present information supplied by the police. After the judge determined that Griffin and Williams were feigning a lack of memory or testifying inconsistently to prior recorded statements, the Commonwealth was allowed to introduce out-of-court statements, admitted substantively, that Williams and Griffin previously had identified the defendant.5 These 5 The judge allowed the substantive introduction of statements by Griffin and Williams to the grand jury "insofar as inconsistent with their trial testimony." See Mass. G. Evid. § 801(d)(1)(A) (2020). He also allowed the introduction as substantive evidence of out-of-court statements of identification made by Griffin and Williams to police. See Mass. G. Evid. § 801(d)(1)(C). The portions of Griffin's August 2011 telephone conversation with detectives that were not relevant to her identification of the perpetrators also were admitted, over the defendant's objections, but the jury were instructed that they were introduced for the limited purpose of establishing Griffin's state of mind. The judge instructed that these other statements were admissible only on the issue whether Griffin's grand jury testimony and statements of identification  7 statements included Griffin's telephone call to police, Griffin's and Williams's statements to police during interviews, and Griffin's and Williams's grand jury testimony. In his interview with investigators, introduced substantively, Williams stated that the defendant and the codefendant (whom he referred to as "Drano" and "Jigga," respectively) walked up to the porch at no. 11. After an exchange of words with the victim, the codefendant pulled out a gun and fired. Both men then started to leave. The codefendant turned around, returned to the porch, and fired several shots at the wounded victim. On the evening of the shooting, Griffin told a responding patrol officer that she had heard shots but did not see anything. She told another officer that she had seen a single shooter run away from the scene. Later that evening, a detective telephoned Griffin to follow up on the information she had given the uniformed officers. During that conversation, Griffin said that there had been two assailants, whom she identified as "Drano" and "Jigga." A few days later, detectives interviewed Griffin at Boston police headquarters. She told them that she had been standing on the opposite side of the street and had observed the "were the result of pressure, coercion or suggestion by the police."  8 defendant and the codefendant (known to her as "Drano" and "Jigga") walk down the street. They said something to the victim (whom she knew as "Doughboy"). The codefendant then pulled out a gun and started firing at the victim. She did not see a firearm in the defendant's hand. She had known the defendant and codefendant "for about a year" from spending time on that street. At the end of the interview, the detectives displayed two photographs of the individuals they believed to be Drano and Jigga. Griffin identified the defendant as Drano and the codefendant as Jigga. 6 On September 1, 2011, Griffin testified before the grand jury. She testified that she had lived on the same street for approximately two years. When she first moved in, a friend introduced her to the codefendant. The codefendant hung around at the top of the street, and Griffin would see him "almost every day." Griffin was less familiar with the defendant. During the two years that she had lived on the same street, in her mother's house, she had seen the defendant "three to four times." They had never had an actual conversation, but were familiar enough with each other to say hello. 6 The photograph itself, which was introduced in evidence, shows that Griffin wrote on the back, "I know this to be DrainO."  9 The defendant, who lived with his sister and his niece, presented an alibi defense. On the evening of the shooting, his niece had been scheduled to dance at a church event, and the defendant agreed to take her there. His niece's father, the church pastor, telephoned at 7 P.M. to find out where she was, and was told that the defendant was on his way. The defendant dropped his niece off at the church at about 7:05 to 7:10 P.M., and returned to his apartment sometime between 7:20 and 7:25 P.M. 2. Discussion. The defendant raises three claims in this direct appeal from his conviction combined with his appeal from the denial of his motion for a new trial. First, he contends that he was deprived of the effective assistance of counsel, in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. Second, he argues that the judge erred in allowing a transcript of Griffin's grand jury testimony to be introduced in evidence. Third, the defendant maintains that the prosecutor impermissibly exercised a peremptory challenge to exclude an African-American juror. a. Ineffective assistance of counsel. In his motion for a new trial, and in his supplemental motion, the defendant raised numerous claims of ineffective assistance by his trial counsel. In particular, the defendant argued that trial counsel was  10 ineffective because he (a) did not move to suppress Griffin's out-of-court identification; (b) did not present exculpatory evidence that would have called into question Griffin's ability to observe the shooters from across the street; (c) did not present testimony from an expert on eyewitness identification; (d) did not request a limiting instruction regarding the codefendant's motive to harm the victim for violating the "no snitching" code; and (e) did not object to misstatements in the prosecutor's closing argument. The motion judge, who was not the trial judge, 7 ruled that the defendant had not established that trial counsel was ineffective; trial counsel's performance did not fall below that which could be expected from an ordinarily fallible lawyer; and the defendant had not been deprived of an otherwise available, substantial ground of defense. See Commonwealth v. Saferian, 366 Mass. 89 , 96 (1974). In reviewing a claim of ineffective assistance of counsel in a case of murder in the first degree, we apply a more favorable standard of review than that described in Saferian. We use essentially the same standard as we would for an unpreserved error at trial, and determine whether there was error and whether it created a substantial likelihood of a 7 The trial judge had retired.  11 miscarriage of justice. See Commonwealth v. Vargas, 475 Mass. 338 , 358 (2016). Otherwise put, "[w]e consider whether there was an error in the course of the trial (by defense counsel, the prosecutor, or the judge) and, if there was, whether that error was likely to have influenced the jury's conclusion." Id., quoting Commonwealth v. Lessieur, 472 Mass. 317 , 327, cert. denied, 577 U.S. 963 (2015). If a defendant's claim of ineffective assistance is based on a tactical or strategic decision, however, we apply the more rigorous standard providing that, to be ineffective, the attorney's decision must have been manifestly unreasonable. See Commonwealth v. Lang, 473 Mass. 1 , 14 (2015); Commonwealth v. Kolenovic, 471 Mass. 664 , 674-675 (2015), S.C., 478 Mass. 189 (2017). i. Motion to suppress identification. "The failure of counsel to litigate a viable claim of an illegal search and seizure is a denial of the defendant's Federal and State constitutional right to the effective assistance of counsel" (citation omitted). Commonwealth v. Comita, 441 Mass. 86 , 90 (2004). To prevail on an ineffective assistance of counsel claim on this basis, a defendant is required to demonstrate the existence of a viable claim and a likelihood of success on the merits if a motion to suppress had been filed. Id. at 90-91. Upon a finding that trial counsel did not file a motion to suppress where a defendant had a meritorious claim, a defendant  12 must demonstrate as well that admission of the evidence that could have been suppressed created a substantial likelihood of a miscarriage of justice. See Commonwealth v. Fulgiam, 477 Mass. 20 , 29, 36-37, cert. denied, 138 S. Ct. 330 (2017); Commonwealth v. Banville, 457 Mass. 530 , 534 (2010). Here, trial counsel provided an affidavit explaining his reasons for not filing a motion to exclude Griffin's out-of- court identification. He averred, "I thought a motion to suppress would not succeed because a judge would consider a dispute as to how often Griffin had seen [the defendant] to be a jury issue and an identification from a single photo is proper when the witness knows the perpetrator." The motion judge found that counsel reasonably believed that a motion to suppress the identification would have had a minimal chance for success where there was evidence that the witness knew the suspect. See Commonwealth v. Carr, 464 Mass. 855 , 871 (2013) ("the witnesses knew the defendant from the neighborhood and witnessed the shooting in broad daylight; it is unlikely that suggestiveness would have played much of a role in their identifications"); Commonwealth v. Adams, 458 Mass. 766 , 770-771 (2011) ("Traditional identification procedures such as photographic arrays, showups, and lineups were designed primarily for witnesses who had never before seen a particular individual, or who may have seen the individual previously but  13 on a limited basis. They are not normally used, and are not required, for witnesses who know an individual well"). On this basis, the judge concluded that trial counsel's decision did not deprive the defendant of an otherwise available, substantial ground of defense. Where, as here, the motion judge was not the trial judge, and did not conduct an evidentiary hearing on the motion, we regard ourselves as in as good a position to assess the record as was the motion judge. See Commonwealth v. Grace, 397 Mass. 303 , 307 (1986). After careful review of the record, we agree that the defendant did not establish that excluding the out-of- court identification likely would have influenced the jury's verdicts. In her telephone conversation with police, and subsequent interview at police headquarters, Griffin identified Drano as one of the two men involved in the shooting. The detectives displayed a single photograph of the defendant, and then a single photograph of the codefendant, to Griffin after she provided this information. One of the detectives explained that he displayed the individual photographs in order to confirm that the individuals Griffin knew as Drano and Jigga were, indeed, the defendant and the codefendant. In his reply brief, the defendant concedes that there was no doubt that he was known as Drano. Three witnesses, Darryl, Williams, and the codefendant, also referred to the defendant by  14 this nickname. Because the defendant has not shown that any error in choosing not to file a motion to suppress likely would have influenced the jury's verdicts, we need not address the issue whether trial counsel bypassed a meritorious motion to suppress the out-of-court identification. ii. Exculpatory evidence of misidentification. The defendant argues that trial counsel should have introduced exculpatory evidence that Griffin provided police a description of Drano's height that did not reflect the defendant's actual height. The defendant maintains that showing that portions of Griffin's description did not match the defendant's actual characteristics would have "provided objective support" for her testimony at trial that she had not seen the shooter. In her telephone conversation with the detectives, Griffin described Jigga as a black male, aged twenty-seven to twenty-eight, about five feet, seven inches tall, with a dark mark on the right side of his cheek. She described Drano as a black male in his twenties, with "brown" skin and a "low haircut," wearing a blue polo shirt. Later, in her in-person interview, Griffin told detectives that Jigga is approximately five feet, seven inches to five feet, eight inches tall, and that Drano is shorter. In response to further questioning, Griffin estimated that Jigga is approximately six feet tall, and Drano approximately two inches shorter.  15 Trial counsel acknowledged that "Griffin stated Drano was shorter than Jigga, but the booking sheets show that [they] are the same height" (both are listed as six feet tall in Boston police department booking sheets). Counsel explained that he did not attempt to elicit that evidence at trial because it would not have added much to the misidentification defense. Instead, in his closing argument, counsel focused on Griffin's trial testimony that she heard gunshots but did not see anything, and attempted to distance the testimony from Griffin's prior statements by arguing that she was a malleable witness, she had not been standing where she said she had been, and she had been so upset by her belief that her close friend had been killed that she had been unable to observe anything accurately. Counsel urged the jury to consider Griffin's demeanor and actions on the surveillance video footage as evidence that she would not have been in a position to identify anyone. The motion judge determined that the failure to introduce the booking sheets did not deprive the defendant of effective representation. He noted that "the height difference was only a couple of inches at most. The jury had the opportunity to view both defendants together at trial and make their own observations." In light of Griffin's trial testimony that she did not know the defendant, and did not see the shooters, trial counsel's  16 decision not to draw further attention to Griffin's previous statements of identification was not ineffective. iii. Expert on eyewitness identification. The defendant challenges the adequacy of trial counsel's investigation of the Commonwealth's identification evidence. The defendant maintains that trial counsel was unable to make a reasonable tactical judgment as to how to challenge the eyewitnesses because he did not retain an expert witness to explore well-established factors contributing to mistakes in identification. 8 Trial counsel did not file a motion for funds to retain an expert witness because he believed that the judge would have denied it based on Griffin's familiarity with the defendant. Counsel also believed that he would be able adequately to 8 The defendant also claims that trial counsel rendered ineffective assistance because he should have joined the codefendant's request for an enhanced identification instruction based on State v. Henderson, 208 N.J. 208 (2011). In Herndon, 475 Mass. at 328, the codefendant argued that the judge erred in declining to give the requested instruction in light of the court's subsequent adoption of provisional enhanced identification instructions in Commonwealth v. Gomes, 470 Mass. 352 , 376, 379-388 (2015) (Appendix), S.C., 478 Mass. 1025 (2018). We concluded that the trial judge did not abuse his discretion because the codefendant had not provided the trial judge sufficient information to enable "the judge to determine whether the principles in the defendant's proposed instruction were 'so generally accepted' that it would be appropriate to instruct the jury regarding them. Herndon, supra at 329, quoting Gomes, supra at 359-360. The defendant cannot establish a substantial likelihood of a miscarriage of justice here, on the basis of his request for the same enhanced instruction, where he provided no information whatsoever as to the same point on which the codefendant's presentation was inadequate.  17 explore deficiencies in the identification evidence through cross-examination of the Commonwealth's witnesses. The motion judge reviewed an affidavit submitted by an expert witness retained by postconviction counsel. The expert witness discussed the variables that can affect witness identifications generally and that might have influenced Griffin's and Williams's identifications of the defendant, including distance, lighting, exposure duration, stress, and intoxication. The expert opined that the presence of these risk factors increased the likelihood of misidentification. The motion judge concluded similarly that the presentation of an expert witness would not have accomplished anything material for the defense. He noted first that trial counsel challenged the reliability of the pretrial identification evidence through cross-examination of the Commonwealth's witnesses. More importantly, the motion judge concluded that the ability of Griffin and Williams to identify the defendant was not the primary issue at trial. Both witnesses unequivocally testified that they did not observe the shooting itself and could not identify the assailants. The judge observed, "Rather, the issue before the jury was whether the eyewitnesses told the truth prior to trial when they identified [the defendant] as one of the shooters to the police and the grand jury or whether they were telling the truth at trial when  18 they testified that they previously lied and had not actually seen the shooters." "The decision to call, or not to call, an expert witness fits squarely within the realm of strategic or tactical decisions." Commonwealth v. Ayala, 481 Mass. 46 , 63 (2018), and cases cited. Here, the defendant has not established that trial counsel's decision not to retain an expert on eyewitness identification was manifestly unreasonable. See Commonwealth v. Watson, 455 Mass. 246 , 257-258 (2009). The jury were required to resolve an issue of credibility, i.e., whether Griffin and Williams had been truthful, prior to trial, when they identified the assailants as Drano and Jigga. See Commonwealth v. Alvarez, 480 Mass. 299 , 313, S.C., 480 Mass. 1015 (2018) (witness credibility was not appropriate subject of expert testimony). An expert witness's testimony concerning factors related to mistaken eyewitness identification would not have materially aided the defense; the jury did not need an expert to tell them that Griffin and Williams were perhaps mistaken due to external factors -- both testified that they did not closely observe the shooting and insisted that they had not been in a position to identify the suspects. See Ayala, supra at 65 ("we cannot say that trial counsel's decision not to call an expert on eyewitness identification was one that lawyers of  19 ordinary training and skill in criminal law would not consider competent" [quotation and citation omitted]). iv. Limiting instruction on motive evidence. Prior to both men opening fire, the codefendant asked the victim, "[N]ow, what's up with that rattin' shit?" During cross-examination, the codefendant stated that snitches could be both a "bad thing" and a "good thing," but agreed with the proposition that "bad things" could "happen" to "snitches." The codefendant responded affirmatively to the questions whether snitches could get "beat up," "stabbed," or even "killed," "depending on who they told on." The prosecutor used the codefendant's testimony to argue that both defendants "were mad about [the victim] testifying, and bad things happen to snitches." Trial counsel did not request an instruction limiting the jury's consideration of the codefendant's testimony to the codefendant alone. Counsel acknowledged, in his affidavit, that he "should have done so because there was no evidence that [the defendant] was aware that [the victim] had testified at a trial in 2009 or that he shared [the codefendant's] opinions about snitching." In Commonwealth v. Keo, 467 Mass. 25 , 33 (2014), we discussed the admissibility of evidence bearing on a defendant's state of mind that a codefendant was motivated to kill the victim. The disputed evidence in that case consisted of numbers  20 scrawled on the codefendant's bedroom wall purporting to signify a desire to kill members of a rival gang. Id. at 30, 32. We concluded that attributing the import of the writings on the codefendant's wall to the defendant was "problematic." Id. at 33. There was no evidence that the defendant saw the writings on the codefendant's wall and affirmed his willingness to harm members of the rival gang. Id. Here, by contrast, there was circumstantial evidence from which the jury could infer that the defendant and the codefendant shared the same motive to kill the victim. The defendant stood side by side with the codefendant when the codefendant expressed displeasure about "rattin'." As soon as the codefendant made this statement, in effect accusing the victim of violating the "no snitching" code, both men produced firearms and shot the victim. Moreover, the defendant cannot show that he was prejudiced by trial counsel's failure to request a limiting instruction. Motive is not an element of the crime of murder. See Commonwealth v. Carlson, 448 Mass. 501 , 508-509 (2007). The Commonwealth introduced substantial evidence that the defendant shared the codefendant's intent to kill the victim. Producing a firearm and firing at the victim from close range is sufficient to establish such an intent. See Commonwealth v. Gonzalez, 475 Mass. 396 , 416 (2016) (bringing firearm to lethal encounter  21 implied shared intent to kill); Commonwealth v. Rosa, 468 Mass. 231 , 233-234 (2014) (defendant was one of three shooters seen firing at victim); Commonwealth v. Britt, 465 Mass. 87 , 88-89 (2013) (intent to kill established where defendant brought gun to scene and fired at victim). v. Prosecutor's closing argument. The defendant also argues that counsel was ineffective because he did not object to portions of the prosecutor's closing argument. We review this claim to determine whether any error in failing to object would have created a substantial likelihood of a miscarriage of justice. Vargas, 475 Mass. at 358. See Commonwealth v. Martinez, 476 Mass. 186 , 198 (2017). Accordingly, we assess the closing argument "in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial." Commonwealth v. Carriere, 470 Mass. 1 , 19 (2014). The defendant contends that the prosecutor misstated the evidence in discussing Griffin's testimony. In particular, in describing Griffin's familiarity with the defendant and the codefendant, the prosecutor argued, "But these are gentlemen who [Griffin] knew for essentially two years, but at least a year. On a daily basis [Griffin] saw both of these guys. She saw them on a daily basis." According to the defendant, this argument has no basis in the trial evidence, as there was undisputed  22 testimony that Griffin had seen the defendant only three or four times over the course of the two years that she lived on the defendant's street. We agree that the prosecutor, in part, misstated the evidence with respect to Griffin's familiarity with the defendant. In her interview, Griffin told the police that she had known the defendant and codefendant "[f]or about a year." 9 In her grand jury testimony, Griffin said that she lived on the same street for two years. The prosecutor then asked, "How often, during the time that you lived [there], would you see or encounter [the defendant]?" She answered, "Three to four times." Thus, while the evidence could support the argument that Griffin had known the defendant over the course of two years, at no point did Griffin testify, or tell the police, that she had seen the defendant "on a daily basis." The defendant also contends that the prosecutor misstated the evidence by arguing that Griffin testified that she saw the defendant shoot the victim. The prosecutor argued that the defendant was "the person in the [g]rand [j]ury [Griffin] 9 We reject the defendant's argument that this statement was admitted for the limited purpose of demonstrating whether Griffin's grand jury testimony was coerced. Griffin's familiarity with the defendant provided context for her identification of the suspect and, therefore, was admissible without limitation. See Commonwealth v. Adams, 458 Mass. 766 , 772 (2011); Mass. G. Evid. § 801(d)(1)(C) (2020).  23 indicated, as well, was the person who shot [the victim]." To the contrary, however, Griffin testified before the grand jury that the codefendant opened fire, and that she did not see a gun in the defendant's hand. Thus, as the Commonwealth concedes, the prosecutor improperly misstated the facts. In the context of the argument as a whole, however, we conclude that the improper statements did not create a substantial likelihood of a miscarriage of justice. While they were misstatements on the critical issue of identification, these were relatively brief misstatements in a complicated case involving two defendants and testimony by reluctant witnesses. They were not repeated or emphasized, and would not have detracted significantly from the other, accurate statements about the identification evidence. See Commonwealth v. Copeland, 481 Mass. 255 , 264 (2019); Commonwealth v. Burgos, 462 Mass. 53 , 72, cert. denied, 568 U.S. 1072 (2012). In addition, the judge provided the jury with instructions that they were the sole and exclusive finders of fact, and that it is the jury's "collective memory [of the evidence] that controls," and not the memory of counsel. The judge also instructed that the final arguments were just that: "Arguments are arguments. They are not evidence." See Commonwealth v. Goitia, 480 Mass. 763 , 768 (2018); Commonwealth v. Rakes, 478 Mass. 22 , 46-47 (2017); Commonwealth v. Kozec, 399 Mass. 514 , 517 (1987).  24 b. Admission of grand jury transcript. The defendant challenges the decision to allow the introduction of Griffin's grand jury testimony on the ground that most of Griffin's trial testimony did not contradict what she said before the grand jury. On direct examination, Griffin testified that she did not recall testifying before the grand jury. When presented with excerpts of her grand jury testimony, she testified that she either did not remember the events, or denied that she had made those statements. For example, she testified concerning her familiarity with the defendant: Q.: "And then you were asked a question [at the grand jury]: 'Ms. Griffin, during that period of time that you lived on [the defendant's] street, did you know an individual who went by the name of Drano?' And the indication was yes. Did I read that correctly?" A.: "No." Q.: "Did I read that correctly?" A.: "Yeah, you read the paper." After a sidebar conference, the judge allowed the Commonwealth's motion to introduce the grand jury testimony substantively because he found that Griffin's lack of memory was feigned. The prosecutor moved to introduce a copy of a transcript of Griffin's grand jury testimony in evidence. The codefendant objected that introduction of the transcript would "accentuate that which was presented once [to the jury] in  25 testimonial form" by what the prosecutor had read during his questioning of Griffin. The defendant joined this objection and added that he would be prejudiced by the cumulative presentation of evidence, much of which was duplicative but some of which had not been introduced at all. The judge overruled the objection, and allowed the transcript to be introduced substantively, pending any redactions the parties might seek. Because the objection was preserved, we review the defendant's claim for prejudicial error. See Commonwealth v. Nardi, 452 Mass. 379 , 396 (2008). In Commonwealth v. Andrade, 481 Mass. 139 , 141 (2018), we considered a claim that the Commonwealth improperly had presented grand jury testimony that was admitted as substantive evidence. As in this case, the prosecutor there "chose to read relevant excerpts from the transcripts, punctuated by questions to the witness as to whether [the witness] recalled giving the grand jury testimony." Id. We held that "although the prosecutor's method was unconventional," the judge did not err in allowing the jury to treat the grand jury testimony as substantive evidence. Id. at 144. In so holding, we noted that the preferable method of introducing prior testimony as substantive evidence is to "read [the transcripts] directly into the record either by one person reading the questions and a colleague reading the answers, or by one person reading the  26 entire excerpt but making clear which portions are questions and which are answers." Id. Based on our previous decisions, the judge believed that admission of a transcript to supplement oral testimony was a matter of his discretion. See Commonwealth v. Maguire, 392 Mass. 466 , 473 (1984); Commonwealth v. Bianco, 388 Mass. 358 , 370, S.C., 390 Mass. 254 (1983); Commonwealth v. Mandeville, 386 Mass. 393 , 404-406 (1982). He did not have the benefit of the Andrade opinion to guide his decision. If he did, the judge would have sustained the defendant's objection to the admission of the transcripts in evidence. We discern no reversible error from the manner in which the grand jury evidence was presented to the jury. The grand jury transcripts that were introduced as exhibits may have been cumulative of the excerpts presented to Griffin, and it would have been preferable to read the transcript in evidence as set forth in Andrade. It is entirely speculative to assume, however, as the defendant argues, that the jury improperly focused on this transcript to the exclusion of contradictory evidence.10 10Moreover, to the extent the defendant argues, as he did in his motion for a new trial, that portions of the transcript were introduced that had not first been presented as questions to the witness before the jury, nothing in the transcript that was other than testimony concerning identification (a  27 c. Peremptory challenge. The defendant argues that the judge erred in ruling that the defendant had not established a prima facie case of discriminatory use of peremptory challenges sufficient to support his objection to the prosecutor's exercise of his fourth peremptory challenge to excuse a black woman. The Fourteenth Amendment and art. 12 "prohibit a party from exercising peremptory challenges on the basis of race or gender." Commonwealth v. Lopes, 478 Mass. 593 , 597 (2018). See Batson v. Kentucky, 476 U.S. 79 , 95 (1986); Commonwealth v. Soares, 377 Mass. 461 , 486, cert. denied, 444 U.S. 881 (1979). A Batson-Soares objection to a proposed peremptory challenge, such as that raised by trial counsel, triggers a three-step process. Commonwealth v. Robertson, 480 Mass. 383 , 390-391 (2018). First, the burden is on the objecting party to establish a "prima facie showing of impropriety" sufficient to "overcome[] the presumption of regularity afforded to peremptory challenges" (citation omitted). Id. If the judge finds that the objecting party established a prima facie case of discrimination, the party attempting to exercise the peremptory challenge bears the burden of proving a "group-neutral" reason for striking the juror. Id. at 391 . Finally, the judge description of the events surrounding the shooting) would have made a difference in the jury's thinking.  28 evaluates whether the proffered reason is both adequate and genuine. Id. We have emphasized that the burden of making the requisite prima facie showing is not "a terribly weighty one." See Commonwealth v. Jones, 477 Mass. 307 , 321 (2017), quoting Commonwealth v. Maldonado, 439 Mass. 460 , 463 n.4 (2003). The presumption of regularity can be rebutted by "a prima facie showing of either a pattern of challenges of members of the same discrete group, or, in certain circumstances, challenge of a single prospective juror within a protected class, where there is a likelihood that [the juror is] being excluded from the jury solely on the basis of . . . group membership" (quotation and citations omitted). Commonwealth v. Issa, 466 Mass. 1 , 8 (2013). In determining whether a pattern of discrimination exists, a judge may consider all of the relevant circumstances, including (1) "the number and percentage of group members who have been excluded"; (2) "the possibility of an objective group-neutral explanation for the strike or strikes"; (3) "any similarities between excluded jurors and those, not members of the allegedly targeted group, who have been struck"; (4) "differences among the various members of the allegedly targeted group who were struck"; (5) "whether those excluded are members of the same protected  29 group as the defendant or the victim"; and (6) "the composition of the jurors already seated." Jones, supra at 322. The defendant raised a Batson-Soares objection to the Commonwealth's challenge to juror no. 179, "the third or fourth black person" excused by the prosecutor. The trial judge rejected the defendant's contention that the prosecutor had engaged in a pattern of excluding black jurors. The judge observed that the seated jurors included "four black people out of eight . . . . So, obviously the Commonwealth passed on them." The judge observed that the prosecutor had not exercised peremptory challenges on four black jurors who had been excused by request of the defendant or the codefendant. He commented, "So that looks like . . . eight black African Americans that [the prosecutor has] passed on." Out of fourteen challenges, the prosecutor sought to remove three prospective black jurors. The judge concluded, "I see no pattern at all. So I'm not going to inquire as to [the prosecutor's] reason for excluding [juror no. 179]." It does not appear that the prosecutor exercised a disproportionate number of peremptory challenges against prospective black jurors. Juror no. 179 was the thirty-seventh potential juror the judge found to be indifferent. Of the thirty-seven indifferent jurors, twelve were black, and the prosecutor was content with nine (seventy-five percent) of  30 those. In other words, the prosecutor used peremptory challenges to exclude three of the twelve indifferent black jurors (one quarter of the indifferent jurors). At the point when the defendant raised his Batson-Soares objection, four of the eight seated jurors were black. See Commonwealth v. Oberle, 476 Mass. 539 , 546 (2017). Because one-half of the then-seated jurors were black, and three-quarters of the indifferent black jurors had not been excluded, there was no abuse of discretion in the judge's determination that the defendant had not established a pattern of racial discrimination. Relying on Jones, 477 Mass. at 324-325, the defendant argues that the trial judge erred in finding that the "presence of some black people on the jury" was dispositive. This case is readily distinguishable from Jones. In that case, the trial judge "relied primarily, if not exclusively, on the presence of the single African-American who at that point had been seated." Id. at 325. Compare Commonwealth v. Ortega, 480 Mass. 603 , 607 (2018) ("judge relied exclusively on the presence of a single female African-American who at that point had been seated in concluding that the defendant had not met his prima facie burden"). Here, by contrast, the trial judge did not rely "exclusively" or "primarily" on the number of black jurors seated in the jury box. He considered the number of potential jurors determined to be indifferent and assessed whether the  31 prosecutor had challenged a disproportionate number of black jurors. We discern no abuse of discretion in the judge's finding that the defendant did not establish a prima facie case of excluding black jurors. d. Review under G. L. c. 278, § 33E. The defendant asks us to use our authority under G. L. c. 278, § 33E, to grant him a new trial or to reduce the verdict of murder in the first degree. We have conducted a thorough review of the entire record and discern no basis upon which to exercise our authority under G. L. c. 278, § 33E. 3. Conclusion. We affirm the defendant's convictions and the denial of his motion for a new trial. So ordered.

2021-09-01 13:03:40.031471+00

https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2014cv0397-400-0

In the United States Court of Federal Claims Nos. 14-397L, 15-194L (Filed: August 31, 2021) ***************************** * Fifth Amendment Taking; GLORIA J. JACKSON, et al., and * National Trails System Act; 16 MARK FREDERICK GUENTHER, * U.S.C. § 1247(d); Just et al., * * Compensation; Valuation; Plaintiffs, * Expert Witness Credibility; * Admissibility of Exhibit After v. * Trial; Interest Rate Appropriate * for Just Compensation. THE UNITED STATES, * * Defendant. * * ***************************** Mark F. (Thor) Hearne, II and Stephen S. Davis, True North Law LLC, 112 South Hanley Road, Suite 200, St. Louis, MO 63105, for Plaintiffs. James H. Hulme and Laurel LaMontagne, Arent Fox LLP, 1717 K Street, N.W., Washington, D.C. 20006, for Plaintiffs. Lindsay S.C. Brinton and Meghan S. Largent, Lewis Rice LLC, 600 Washington Avenue, Suite 2500, St. Louis, MO 63130, for Plaintiffs. Jeffrey H. Wood, John C. Cruden, Jean E. Williams, Jeffrey B. Clark, Lucinda Bach, and Amarveer Brar, United States Department of Justice Environment & Natural Resources Division, Natural Resources Section, P.O. Box 7611, Washington, D.C. 20004, for Defendant. Craig Keats and Evelyn Kitay, Surface Transportation Board Office of the General Counsel, 395 E Street, S.W., Washington, D.C. 20024, Of Counsel. _____________________________________________________________________________ OPINION AND ORDER _____________________________________________________________________________ WILLIAMS, Senior Judge. This Fifth Amendment taking case comes before the Court following a trial on damages. Plaintiffs, landowners of 59 properties adjacent to a former railroad corridor in Newton County, Georgia, seek just compensation stemming from the imposition of a recreational trail across their properties. 1 Because the Government’s liability for the taking was established on summary 1 The Court consolidated this action with Guenther, et al. v. United States, No. 15-194L as all plaintiffs are landowners in Newton County, Georgia whose takings claims arise out of the judgment, the only issue before this Court is the quantum of just compensation. Jackson v. United States, 135 Fed. Cl. 436 , 472-73 (2017). Plaintiffs seek $1,410,594, representing $636,311 for the encumbrance of the trail and $774,292 in severance damages, plus interest. 2 Defendant asserts that compensation should be $413,051. For the reasons set forth below, the Court adopts the valuations of Plaintiffs’ expert, making adjustments due to the erroneous pricing of a comparable property sale that affected 10 properties. Also at issue is the proper interest rate to provide Plaintiffs with just compensation given the delay between the date of the taking and the date of payment. Plaintiffs argue that the Moody’s Composite Index of Yields on Aaa Long Term Corporate Bonds provides the appropriate rate, while Defendant asks the Court to apply the statutory interest rates in the Declaration of Takings Act, 40 U.S.C. § 3116. For the reasons explained below, the Court applies the Moody’s Composite Index interest rate. Findings of Fact 3 On August 19, 2013, the Surface Transportation Board (“STB”) issued a Public Use Condition and a Notice of Interim Trail Use (“NITU”) authorizing a “rail-to-trail” conversion of a 14.9-mile railroad right-of-way between Mileposts E 65.80 near Newborn and E 80.70 near Covington in Newton County, Georgia. Plaintiffs’ land abuts this right of way, and the conversion same August 19, 2013 Notice of Interim Trail Use. There were initially 63 properties at issue. The Court stayed this matter as to four properties that were inside the boundaries of the original NITU, but outside the boundaries of the corrected NITU, pending an appellate ruling. Following the Federal Circuit’s issuance of Caquelin v. United States, 959 F.3d 1360 , 1362 (Fed. Cir. 2020), the Court lifted the stay, and severed the claims of Plaintiffs Hardeman, Jackson, Hart, and Sanford. ECF No. 361 at 1; ECF No. 364 at 11, 17-18. The parties subsequently settled the takings claims of these four Plaintiffs. ECF No. 396. 2 Plaintiffs recognize that there is a $9.00 disparity between their total damages demand and its two component parts. Plaintiffs explain: The landowners’ post-trial brief . . . included the correct total compensation of $1,410,594 but included incorrect component totals for the amount of land value and severance damages. . . . The correct amount of land value, per [Plaintiffs’ valuation expert, Mr.] Hodge’s appraisals and testimony, is $636,311, and the correct amount of severance damage is $774,292 . . . Adding land value and severance results in a total of $1,410,603, which is $9 more than the total referred to in the landowners’ post-trial briefing of $1,410,594. This $9 difference is due to a $1 difference in the appraised valuation listed for nine properties. ECF No. 362 at 2, n.2. 3 These findings of fact are derived from the record developed during a three-day trial on damages. Prior to trial, the Court conducted a site visit of 13 of the landowners’ properties with counsel for both parties. Additional findings of fact are in the Discussion section. The Court uses “PX” and “DX” to designate exhibits admitted during trial and “Tr.” to cite trial testimony. The Court does not correct grammatical errors in quotations from the record. 2 resulted in a recreational trail easement on Plaintiffs’ properties. No railroad traffic has moved over this railroad line since 2010. Sec. Am. Compl. Ex. 1 at 7; Tr. 362. In a Rails-to-Trails case, a taking occurs when “state law reversionary interests are effectively eliminated in connection with a conversion of a railroad right-of-way to trail use.” Caldwell v. United States, 391 F.3d 1226 , 1228 (Fed. Cir. 2004). “The Trails Act prevents a common law abandonment from being effected by the conversion of the railroad right-of-way to an interim trail use, thus precluding state law reversionary interests from vesting.” Rogers v. United States, 90 Fed. Cl. 418 , 428 (2009), aff’d, 814 F.3d 1299 (Fed. Cir. 2015). If standard abandonment occurred, the right-of-way would revert to the landowner who had granted the railroad an easement for railroad purposes only. Rogers, 90 Fed. Cl. at 428. By preventing this reversion and creating a new easement for a new recreational trail, the Government effected a taking pursuant to the Trails Act. See Preseault v. United States, 100 F.3d 1525 , 1550 (Fed. Cir. 1996); Barclay v. United States, 443 F.3d 1368 , 1371 (Fed. Cir. 2006). As the Federal Circuit has explained: Abandonment is suspended and the reversionary interest is blocked “when the railroad and trail operator communicate to the STB their intention to negotiate a trail use agreement and the agency issues an NITU that operates to preclude abandonment under section 8(d)” of the Trails Act . . . We concluded that “[t]he issuance of the NITU is the only government action in the railbanking process that operates to prevent abandonment of the corridor and to preclude the vesting of state law reversionary interests in the right of way.” . . . Thus, a Trails Act taking begins and a takings claim accrues, if at all, on issuance of the NITU. Barclay, 443 F.3d at 1373 (quoting Caldwell, 391 F.3d at 1233-34 (emphasis in original)). Here, Plaintiffs’ properties were taken when the STB issued the August 19, 2013 NITU converting the railroad easement to a recreational trail and preventing the property interests from reverting to Plaintiffs. After the STB authorized the conversion, the railroad tracks and ties were removed. Tr. 363. A portion of the rail corridor was converted into the “Cricket Frog Trail”, a paved concrete recreational trail measuring approximately eight feet wide. Tr. 38, 375. Other portions of the rail corridor remain unpaved with a gravel covering. Tr. 117-18. Landowners whose properties abut the trail testified that noise and traffic increased due to the trail and reported instances of trespass and property damage. Tr. 39, 41, 81, 105, 120. Plaintiff- landowner Robert Dew testified that “traffic has certainly picked up, and the noise certainly has picked up” since the trail was paved. Tr. 41. Plaintiff-landowner James W. Johnson testified that persons drive automobiles and all-terrain vehicles “all the time” on the trail, despite a posted “Dead End” sign. Tr. 77. Plaintiff Johnson testified to multiple encounters with trespassers originating from the trail, and stated “I’ve had many, many threats.” Tr. 81. Plaintiff Johnson detailed a 2015 encounter with a trespasser who brandished a sawed-off shotgun, stating “that’s something you don’t forget.” Tr. 105-06. James K. Johnson, a forest manager for landowner Mary Dixon, 4 testified that the trail corridor raised concerns of “illegal dumping” and “the opportunity for 4 Mary Dixon passed away after the site visit in this case, and her estate has been substituted as a party Plaintiff. 3 wildfires.” Tr. 108-09, 119-20. The 59 subject properties include urban, rural, commercial, residential, agricultural, improved, and unimproved properties in Newton County, Georgia. PX 217 at 3. 5 Newton County is located in North-Central Georgia, within the Atlanta-Sandy Springs-Roswell, Georgia Metropolitan Statistical area, and had a population of 99,958 as of April 2010. PX 1 at 21. Covington is the county seat and largest city in the county, and its diversified economy includes tourism, forestry, agriculture, manufacturing, retail, and service industries. Id.; PX 217 at 8. Local employers include General Mills, Bridgestone Golf, Michelin, and Beaver Manufacturing, and many area residents commute to Atlanta for work. PX 217 at 8. Covington has a rich cultural tradition and is a popular location for filming movies and television shows. PX 1 at 21; Tr. 33-34. Fourteen of the properties are located inside Covington’s Historic District which features homes pre-dating the Civil War. PX 217 at 14; Tr. 33. Plaintiff Robert Dew described the Covington Historic District as “just a laidback, I call it beloved Hooterville, after the old sitcom in the ‘60s . . . it’s just a nice, safe place to raise kids.” Tr. 35. Discussion Jurisdiction The Tucker Act confers jurisdiction on this Court to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1). Here, Plaintiffs allege takings under the Fifth Amendment of the United States Constitution, which is a money-mandating provision. Schooner Harbor Ventures, Inc. v. United States, 569 F.3d 1359 , 1362 (Fed. Cir. 2009). Legal Standards Governing Just Compensation Just compensation is generally determined by “the fair market value of the property on the date it is appropriated.” Kirby Forest Indus., Inc. v. United States, 467 U.S. 1 , 10 (1984). “Under this standard, the owner is entitled to receive ‘what a willing buyer would pay in cash to a willing seller’ at the time of the taking.” Id. (quoting United States v. 564.54 Acres of Land, 441 U.S. 506 , 511 (1979)). The landowner “is entitled to be put in as good a position pecuniarily as if his property had not been taken. He must be made whole but is not entitled to more.” Olson v. United States, 292 U.S. 246 , 255 (1934). “Just compensation should be carefully tailored to the circumstances of the case, and this determination typically requires expert testimony.” Childers 5 The parties presented the direct testimony of some experts via exhibits. Plaintiffs’ Exhibit 217 is the direct testimony of Mr. Hodge, and Defendant’s Exhibit 94 is the direct testimony of Mr. Sheppard. Mr. Matthews, Mr. Underwood, and Dr. Neuberger testified at trial, and their reports were admitted into evidence as exhibits. See PX 144.17 (Matthews); DX 36 (Underwood); DX 26 (Neuberger). 4 v. United States, 116 Fed. Cl. 486 , 497 (2013); Otay Mesa Prop., L.P. v. United States, 670 F.3d 1358 , 1368 (Fed. Cir. 2012). In Rails-to-Trails cases, where the property taken is an easement, “the ‘conventional’ method of valuation is the ‘before-and-after’ method, i.e., ‘the difference between the value of the property before and after the Government's easement was imposed.’” Otay Mesa, 670 F.3d at 1364 (quoting United States v. Va. Elec. & Power Co., 365 U.S. 624 , 632 (1961)). The Uniform Appraisal Standards for Federal Land Acquisition, also known as the “Yellow Book,” sets forth the standards and methods to be applied in appraisals of land acquired by the federal government. Sears v. United States, 132 Fed. Cl. 6 , 12 n.8 (2017), aff’d, 726 F. App'x 823 (Fed. Cir. 2018); DX 5. According to the Yellow Book, all claimed damages must be “supported by actual market evidence,” and the amount of compensation due to each landowner is “measured by the owner's loss, not the government's gain.” DX 5 at 154, 157. In addition to the value of the property actually taken, just compensation also includes severance damages, which is the diminution in value in the owner’s remaining property resulting from the taking. Hendler v. United States, 175 F.3d 1374 , 1383 (Fed. Cir. 1999) (“[J]ust compensation under the takings clause of the Constitution includes not only the market value of that part of the tract appropriated, but the damage to the remainder resulting from that taking.” (internal quotation omitted)); United States v. Grizzard, 219 U.S. 180 , 183, (1911) (“When the part not taken is left in such shape or condition as to be in itself of less value than before, the owner is entitled to additional damages on that account.”). The Yellow Book states that the United States must include severance damages in just compensation. DX 5 at 154. “Plaintiff has the burden of proof with respect to severance damages and must offer evidence that the remainder lost market value.” Childers, 116 Fed. Cl. at 497 (citing Miller v. United States, 223 Ct. Cl. 352 , 383–84 (1980)); see also Hendler, 175 F.3d at 1383 . Appraisals of Subject Properties Both parties retained appraisers to value the subject properties before and after the taking and properly used August 19, 2013, the date the STB issued the NITU, as the date of the taking. PX 217 at 1; DX 94 at 19. However, the appraisers disagreed widely on their appraisals of Plaintiffs’ properties, both as to appropriate appraisal methodologies and valuation. Overview of the Expert Opinions In determining compensation for the appropriated corridor, Plaintiffs’ expert Mr. Douglas Hodge valued the land encumbered by the easement at 100% of its fee simple value. See, e.g., PX 24 at JACKSON 002474-77. 6 In valuing each corridor, Mr. Hodge used a “sales comparison 6 The Court admitted Mr. Hodge as an expert in real estate appraisal, valuation, and the method and practice of real estate appraisal. Tr. 169. Mr. Hodge has 34 years of real estate appraisal experience and is currently employed as a Senior Appraiser at Farmers National Company. PX 217 at 4. He is also the owner of Capstone Realty Resources, which provides appraisals and valuation services. Id. at 4 . Mr. Hodge has a B.S. in Finance from Ferris State University, and is designated as a Member of the Appraisal Institute (MAI). Id. at 3-4 . He has been admitted as an expert in federal and state courts, and has provided expert testimony and/or appraisal services in Rails-to-Trails cases in the Court of Federal Claims, several times on behalf 5 approach,” comparing each individual property with sales of comparable properties and adjusting for differences. PX 217 at 8-10. In assessing severance damages to the remainder, Mr. Hodge found that for the majority of the properties, the remainders had decreased in value between 2 and 45 percent, and that three properties decreased more due to the trail bisecting the property or preventing assembly with other residential properties. Id. at 12 . Mr. Andrew Sheppard appraised the subject properties for Defendant. 7 Mr. Sheppard also used a sales comparison approach in his appraisals and applied the Yellow Book principles. DX 94 at 18-21. Mr. Sheppard valued the land encumbered by the trail easement at 85% of its fee simple value, based on his opinion that Plaintiffs retain approximately 15% of their fee simple rights in the trail area because they can use the land for planting and parking. Id. at 176, 184 . In calculating severance damages to the remainder properties, Mr. Sheppard concluded that no remainder property decreased in value due to the imposition of the trail easement and that no severance damages were warranted. Id. at 21, 189-209 . Mr. Sheppard further found that 22 residential subject properties increased in value by $5,000 as a result of trail adjacency. Id. at 157 . In rebuttal, Defendant presented the expert testimony of Mr. John Underwood, 8 who opined that Mr. Hodge failed to analyze what rights Plaintiffs retain in their property encumbered by the easement, failed to support his calculations of severance damages with market evidence, and failed to adequately verify comparable sales data—as required by the Yellow Book. Tr. 563, 566-67, 585-88. Defendant also presented the testimony of Dr. Jonathan Neuberger, an economist, of the Government. Id. at 5-6 . Mr. Hodge currently holds a certified general appraisal license in Michigan, and has formerly been licensed as a certified general appraiser in Ohio, Indiana, Illinois, and Colorado. He obtained a temporary license in Georgia in conjunction with his work in this case. 7 The Court admitted Mr. Sheppard as an expert in real estate appraisal and valuation. Tr. 412-13. Mr. Sheppard, a longtime Georgia resident, earned a B.A. in real estate from Georgia State University and is a principal in Pritchett, Ball & Wise, Inc., an Atlanta commercial real estate appraisal firm. Tr. 406; PX 94 at 10. Mr. Sheppard is a certified general real property appraiser in Georgia, and is designated as a MAI. PX 94 at 10. He served as the President of the Atlanta- area chapter of the Appraisal Institute in 2017, and has appraised properties for various private and public entities. Tr. 410-11, PX 94 at 10, 40. 8 The Court admitted Mr. Underwood as an expert in real estate appraisal and in the Yellow Book. Tr. 556. Mr. Underwood, a Florida resident since 1948, is a certified general real estate appraiser in Florida. DX 36 at US_0003282. He is the president and owner of Appraisal & Acquisition Consultants, Inc., a real estate appraisal and consulting firm which he founded in 1983. Tr. 549. Mr. Underwood was designated as a MAI in 1982, and in 1984 was certified as a MAI with Senior Resident Appraisal (SRA) designation, which denotes competence in appraising single-family and one-to-four unit properties. DX 36 at US_0003282; Tr. 552. Mr. Underwood currently teaches courses on the Yellow Book for the Appraisal Institute, and has published articles on real estate appraisal and given expert testimony in state and federal cases. See id. at US 0003279-81. 6 who opined that Mr. Hodge’s failure to adequately verify comparable sales or adjust comparable sales for changing market conditions, rendered Mr. Hodge’s appraisals unreliable based on economic conditions immediately before and during the Great Recession. 9 Tr. 620-30; DX 26 at US_0002647-49. In rebuttal to Defendant’s appraisal expert Mr. Sheppard, Plaintiffs presented the expert testimony of Mr. C. David Matthews, 10 who disagreed with Mr. Sheppard’s opinions that Plaintiffs retain 15% of their fee simple rights in the encumbered land and that 22 properties received a $5,000 “special benefit” due to trail adjacency. See PX 144.17 at 7. Evidentiary Issues The Court Rejects Defendant’s Challenge to Mr. Hodge’s Credibility Defendant argues that Plaintiffs’ appraiser Mr. Hodge made misrepresentations in his temporary appraiser license application in Georgia that undermine his credibility. ECF No. 264 at 79-80. 11 Under Georgia law, it is unlawful for anyone to engage in “real estate appraisal activity” without “first obtaining an appraiser classification.” Ga. Code Ann. § 43-39A-24 (West). The Georgia code defines “real estate appraisal activity” as “the act or process of valuation of real estate or real property and preparing an appraisal report.” Ga. Code Ann. § 43-39A-2 (West). On August 22, 2017, Mr. Hodge signed his initial application for a temporary Georgia license and submitted it on or about August 30, 2017. DX 46 at HODGES000218-221. On the application, Mr. Hodge certified “I hereby agree not to engage in, conduct, advertise, or hold myself out as engaging in or conducting the business of a state real estate property appraiser in Georgia until I receive my temporary practice permit.” Id. at HODGES000221. Prior to applying 9 The Court admitted Dr. Neuberger as an expert in economics. Tr. 619. Dr. Neuberger holds a B.S. in International Relations from Georgetown University, and a master’s degree and Ph.D. in Economics from Johns Hopkins University. Tr. 606. He is a principal at Economists Inc., a consulting firm providing economic research for litigation and regulatory matters. Tr. 608- 09. Dr. Neuberger has been qualified to give expert testimony in the Court of Federal Claims, federal district courts, and state courts. Tr. 609-10. He is a member of the American Economics Association, has published articles and taught courses on economics and finance. Tr. 613-15. 10 The Court admitted as Mr. Matthews as an expert in appraisal practice, appraisal review, and related land valuation. Tr. 664. Mr. Matthews graduated from the University of Tennessee with a degree in real estate. Tr. 644-45. He holds the MAI with SRA, CRE (Counselor of Real Estate), and GRS (general appraisal reviewer) designations from the Appraisal Institute. Tr. 645. He is the owner and principal of David Matthews Associates, a firm providing appraisals of rural and urban properties, including easements in several Rails-to-Trails cases. Tr. 647. At the time of trial, Mr. Matthews was a licensed real estate appraiser in Georgia, Indiana, Kentucky, Iowa, and Florida. Tr. 649. He has provided expert testimony in the Court of Federal Claims and other federal and state courts. Tr. 648-49. 11 Defendant filed a motion in limine, arguing that Mr. Hodge’s “material misstatements” in his original temporary license application warranted exclusion of his appraisal testimony. See ECF No. 196 at 13-14. The Court denied this motion. ECF No. 217. 7 for or receiving his temporary license, Mr. Hodge had traveled to Newton County from August 9- 11, 2017, where he performed inspections of the subject properties, visited the Newton County Tax Assessor’s Office, and met with some Plaintiff-landowners in connection with his appraisals in his case. Tr. 156-57. On August 31, 2017, the Georgia Real Estate Appraisal Board returned Mr. Hodge’s temporary license application unprocessed, as the Board had not received Mr. Hodge’s required criminal background report. See DX 46 at HODGES000218; Tr. 163. The Board asked him to submit his criminal background report, additional materials, and pay an “incomplete application fee.” DX 46 at HODGES000228. Mr. Hodge resubmitted his application with the requested materials and fee on September 26, 2017, and received his temporary license in January 2018. Id. at HODGES000223; Tr. 160, 162, 167. 12 Mr. Hodge’s appraisal reports are dated between September 2017 and February 2018. See PX 29 at JACKSON 002890 (dated September 18, 2017); PX 38 at JACKSON 003769 (dated September 19, 2017); PX 43 at JACKSON 004143 (dated October 3, 2017); PX 9 at JACKSON 0006349 (dated February 1, 2018). Mr. Hodge had his temporary Georgia real estate appraisal license when he rendered his opinions via his written direct testimony on April 20, 2018. Tr. 167-69; PX 217 at 1. At trial, Mr. Hodge was asked whether he understood that he was holding himself out as a Georgia state real estate appraiser when performing inspections of Plaintiffs’ properties from August 9-11, 2017, prior to receiving his temporary appraisal license. PX 217 at 4; Tr. 155-61, 167-68. Mr. Hodge testified that he was not engaging in the business of a Georgia state real estate appraiser because he was rendering opinions in this case -- not working as a Georgia state real estate appraiser. Specially, Mr. Hodge testified: MR. HEARNE (COUNSEL FOR PLAINTIFFS): Did you understand that you were holding yourself out in the context of a real estate transaction in Georgia as a state real estate appraiser? MR. HODGE: No. MR. HEARNE: In this engagement? What did you understand this engagement to be? MR. HODGE: This was a – a federal case to determine the damages and the loss in property value as a result of a federal taking, not a state taking. MR. HEARNE: Did you understand that it was in connection with any state real estate transaction in the State of Georgia? MR. HODGE: There was no state transaction involved. Tr. 164-65. Defendant’s counsel questioned Mr. Hodge on voir dire about the timing of his license and his understanding of Georgia state law but did not lodge a formal objection to admitting Mr. Hodge. The Court found that Mr. Hodge’s interpretation of the Georgia Code did not affect his 12 Mr. Hodge’s criminal background report showed no criminal history. DX 46 at HODGES000224-26; see Tr. 162. 8 qualifications as a real estate appraiser and admitted Mr. Hodge as an expert. Defendant argues that Mr. Hodge’s testimony lacked credibility because he inaccurately certified that he would not engage in the business of a state real estate appraiser in Georgia until he received his temporary license. Defendant contends that when Mr. Hodge inspected properties in this case prior to receiving his permit, he was engaging in the business of a George real estate appraiser. In this Court’s view, Mr. Hodge reasonably believed that because his work in this case did not involve any real estate transaction in Georgia -- no actual purchase or sale -- but rather a valuation for federal litigation purposes, he was not engaging in the business of a state real estate appraiser in Georgia. While Mr. Hodge’s belief in this regard may have been incorrect, Defendant has not established that any error in his interpretation of the Georgia Code has impacted his credibility as an appraiser. 13 The Admissibility of PX 144.18 Although it is late in the game for the Court to be resolving an evidentiary matter, the parties dispute whether the addendum to Mr. Matthews’ expert report rebutting the opinions of Mr. Sheppard, PX 144.18, should be in evidence. Plaintiffs did not seek to admit PX 144.18 into evidence during trial or at the time they filed their post-trial brief. ECF No. 265 at 103, n. 1. Subsequently, at the beginning of closing arguments, Plaintiffs’ counsel asked the Court to admit the addendum into evidence, stating that their failure tender the exhibit during trial was an oversight, and that it was clear at trial that “everybody knew that that exhibit was what Mr. Matthews was testifying to.” Tr. 805. Defendant objected, arguing that it would be prejudiced by the admission of the addendum. ECF No. 328. PX 144.18 consists in large part of a 29-page Trail Study labeled “Example of Proper Methodology to Extract Proximity Benefit or Damage Created By A Hiking/Biking Trail In the Rear of a Single Family Residence” made up of seven analyses of Georgia property sales of varying age, lot size, and proximity to a trail corridor, occurring from approximately March 2006 to December 2016. PX 144.18 at JACKSON 004810-13. The addendum also includes approximately 14 pages of graphs and charts synthesizing Mr. Matthew’s analysis of Mr. Sheppard’s report as well as information about the Case-Shiller Index. Id. at JACKSON 004794- 808. The description of the Trail Study in the addendum states: A study was made to determine if the presence of a hiking and biking trail has a beneficial effect on the market value of abutting single family residential lots; has 13 Whether or not Mr. Hodge actually engaged in the business of a state real estate appraiser in Georgia by inspecting the properties in this case is a matter within the purview of the Georgia licensing authorities. There is no evidence suggesting that a representative of the state of Georgia ever communicated any concerns regarding Mr. Hodge’s representations in his temporary license application. DX 46 at HODGES000224-26; Tr. 163. If Georgia officials found Mr. Hodge had materially misrepresented information in his application, they could have suspended or revoked his permit. Ga. Code Ann. § 43-39A-14(d) (West). 9  no effect; or has a negative effect on market value. The methods used for this study involved finding sales of residential properties that abut a trail or other transportation corridor and comparing those sales with sales of similar property that do not abut a trail or other corridor. Id. at JACKSON 004810. According to Mr. Matthews, the Trail Proximity Damage Study provides an example of the proper methodology using seven analyses to extract benefit or damage created by a trail in the rear of a single-family residence as an alternative to Mr. Sheppard’s method. Id. at JACKSON 004810-11. The methodology used in this study “involved finding sales of residential properties that abut the trail or other transportation corridor and comparing those sales with sales of similar property that do not abut a trail or other corridor.” Id. at JACKSON 004810. No comparable trails were found in Newton County or the surrounding areas. A comparable trail, the Fall Line Trace Trail, was found in Columbus, Georgia. Five analyses of this trail were conducted, which collected sales that appear to be arm’s length non-bank foreclosure sales along and away from the trail. Id. at JACKSON 004810-11. In the addendum Mr. Matthews opined that “[t]he resulting data indicated some consistent trends. The overwhelming results were that properties abutting the trail did tend to sell for less than homes without a trail in their back yard.” Id. at JACKSON 004810. Two additional analyses included in the Trail Proximity Damages Study were of properties in Covington that abut other transportation corridors, which “were selected because they suffer loss of privacy in much the same way as the subject parcels.” Id. at JACKSON 004810. These studies showed that abutment to a trail or transportation corridor caused the remainder parcels to lose 20.5% to 99% of their value with an average of 51.8%. Id. at JACKSON 004812. In the addendum to his rebuttal report, Mr. Matthews opined “that the probable loss to the land value [of single-family residences abutting a hiking/biking trail] lies within the range of 25% and 50% with my best estimate in the middle of that range at 33.3% loss.” Id. Mr. Matthews executed a certification for the addendum in PX 144.18 stating that he “made a personal inspection of the subject of the work under review” and that “no one provided significant appraisal, appraisal review or appraisal consulting assistance” to him. Id. at JACKSON 004833-34. Plaintiffs argue that the copy of the addendum used during trial was physically attached to Mr. Matthew’s rebuttal report, PX 144.17, admitted at trial, but that this addendum was marked as a separately as Exhibit 144.18 and referenced along with PX 144.17, collectively as “the report.” ECF No. 329 at 8. The testimony supports Plaintiffs’ position: MR. HEARNE: Let me give you an exhibit, if I could, it’s Plaintiffs’ Exhibit 144.17. If I may approach, Your Honor? THE COURT: Certainly. MR HEARNE: And just, your Honor, if I could. THE COURT: Yes? MR. HEARNE: To simplify the process, I may give this witness, if I could, all of the exhibits I am going to refer to. Just the ones we’ve referenced. THE COURT: Sure. 10  MR. HEARNE: And ask him to identify these. MR. MATTHEWS: This is a copy, a complete copy of my review, rebuttal of appraisal report submitted by Andy Sheppard. MR HEARNE: And does that have the addendum attached to it? MR. MATTHEWS: Yes, it does. Tr. 667-68 (emphasis added). Thus, at trial Plaintiffs’ counsel used a copy of Mr. Matthews’ rebuttal report, PX 144.17, which had the addendum attached to it, instead of referring to the separately marked addendum in PX 144.18. Due to this erroneous combination of what should have been two separate exhibits, PX 144.17 and PX 144.18, Plaintiffs’ counsel only sought to admit PX 144.17 even though counsel referenced both. Defendant argues that because Plaintiffs did not offer the addendum into evidence at trial, Defendant’s counsel modified his cross-examination of Mr. Matthews. ECF No. 328 at 4. This argument lacks merit as counsel for Defendant did cross-examine Mr. Matthews on graphs which were present only in the addendum, the exhibit that was not admitted. Tr. 737-39. The exchange between Defendant’s counsel and Mr. Matthews is as follows: MR. HARRINGTON (COUNSEL FOR DEFENDANT): You have a number of graphs in your rebuttal report. Are those graphs also illustrative, just the way the paired sales analysis you referred to was illustrative? MR. MATTHEWS: They were actually an analysis of Mr. Sheppard’s resulting value opinions. I’m trying -- I was trying to understand are they reasonable. So you’ll see a lot of different graphs about his value per acre, his total compensation estimates, before values, a lot of different graphs for me to help understand or to understand better what he did and why he did it. MR. HARRINGTON: But those are not graphs that you used or you could properly use to come up with alternative numbers? MR. HODGE: With values, alternative -- no. MR. HARRINGTON: When you put together the lines on those graphs, you simply used Excel’s built-in formulas to develop those graphs. Isn’t that right? MR. MATTHEWS: Yeah. My understanding of the statistics goes no further than that. Tr. 737-39 (emphasis added). Defendant’s counsel’s reference to the “number of graphs” in what he called Mr. Matthews’ “rebuttal report” indicates that, at trial, counsel for Defendant, like counsel for Plaintiffs, referred to the addendum as “the rebuttal report” and viewed the report and addendum collectively. There are no graphs in Mr. Matthews’ rebuttal report, the exhibit that was admitted, PX 144.17. Given that Defendant’s counsel did cross-examine the opposing expert on 11 the graphs in the addendum and had the opportunity to inquire about the Trail Study if he had chosen to during trial, Defendant will not be prejudiced by admitting the addendum. 14 Taking into account the instances at trial where counsel for both parties and Mr. Matthews refer to the report and addendum collectively, the fact that the addendum was physically attached to the rebuttal report at trial, that counsel for Defendant cross-examined Mr. Matthews on graphs that were present only in the addendum, and counsel for both parties proceeded as though the addendum was in the record, the Court admits PX 144.18 into the record, nunc pro tunc. The Property Rights Plaintiffs Retain in the Land Taken by the Easement In Mr. Hodge’s view, the subject property owners retain virtually no rights in the encumbered land, and thus each of his “after” valuations assumed the Government had taken a fee simple interest in the encumbered portion. Tr. 181-82, 219-23. Mr. Hodge reached his conclusion that the easement extinguished virtually all of Plaintiffs’ property rights in the encumbered parcel by comparing the trail easement’s impact on the property owners’ ability to use the encumbered land with impacts caused by other types of easements. Tr. 219-20. In Mr. Sheppard’s opinion, each Plaintiff retains 15% of the property rights in the encumbered land, and his appraisals award each owner compensation for 85% of the encumbered land’s fee simple value. DX 94 at 183-84. In arriving at this conclusion, Mr. Sheppard relied upon a matrix on easement valuation detailing other types of easements, appearing in an article by Mr. Donald Sherwood from the May/June 2006 edition of Right of Way magazine, reproduced below: 14 Defendant’s counsel also claims prejudice because he did not call a sur-rebuttal witness, Dr. Neuberger, once Plaintiffs elected not to introduce the addendum into evidence, stating: [S]ur-rebuttal expert, Dr. Neuberger, was present in court and prepared to testify in detail about the inappropriateness of using the Atlanta Case-Shiller Index for valuation of Newton County real estate; numerous flaws in Mr. Matthews’ “graphical methodology” for purportedly identifying appropriate adjustments for size and location, as well as in Mr. Matthews’ trail proximity study included in PX 144.18. Because Plaintiffs elected not to introduce PX 144.18, the United States chose to forego aspects of its planned cross-examination of Mr. Matthews and there was no reason to call Dr. Neuberger as a sur-rebuttal witness. Consequently, Dr. Neuberger did not testify at all. ECF No. 328 at 4. Counsel’s argument that he was poised to call Dr. Neuberger but opted not to because Plaintiffs had not introduced the addendum into evidence falls flat, as Defendant’s counsel’s conduct during trial indicated that he believed that the addendum had been admitted. Tr. 737-39. 12 DX 94 at 183. Mr. Sheppard viewed this matrix as a “general guide for the impact or allocation from fee simple value a host of typical easement types may have on the total bundle of rights” held by a property owner. Id. Mr. Sheppard concluded: As seen on the matrix, a percentage of fee-simple value for the affected easement area ranges between 75% and 89%, considering the severity of impact on the surface’s use . . . The trail easement was not considered to be as onerous as overhead transmission lines, access roads, or railway right-of-way, because there is no aesthetic quality lost as a result of the trail, vehicles are precluded from using the trail, and there is no expectation that rail cars will use the trail. I conclude, however, that an appropriate percentage is toward the higher end of the 75% to 89% range, at 85%. Id. at 184. The Court finds that Mr. Sheppard’s opinion that these Plaintiff owners retain 15% of their property rights in the land encumbered by the trail is unsupported by the evidence and contrary to caselaw. At the outset, Defendant failed to establish that the Sherwood matrix is a persuasive indicator of the owners’ property rights in land encumbered by a Rails-To-Trails easement. 13 Plaintiffs’ expert, Mr. Matthews, articulated the pitfalls of relying on this matrix, stating: One of [Mr. Sheppard’s] two primary support sources for the 15% remaining value is a chart an appraiser published in the 2006 publication of the Right of Way magazine. I subscribe to that magazine as a member of IRWA. I am sure the author, Don Sherwood, would not approve of an appraiser using his chart to value dozens of properties in a [Rails-to-Trails] appraisal. Sheppard states this is a general guide. I disagree with several of Mr. Sherwood's generalizations by category and value of rights taken based on my extensive experience in appraising corridor easements acquisitions. While there may be some benefit to appraisers in helping them better understand the influence of various types of easements, the use of this as primary valuation support in a condemnation proceeding is inappropriate. PX 144.17 at JACKSON 004739. Mr. Matthews’ critique of Defendant’s reliance on the Sherwood matrix is persuasive. Recreational trail easements do not even appear on the matrix. DX 94 at 183. But even if the Sherwood matrix could provide some guidance here, it does not support Mr. Sheppard’s conclusions. Under the Sherwood matrix, access road easements, the most similar easements to the trail, are considered to have a “severe impact on surface use,” and are assessed a 90-100 “percentage of fee” -- not an 85% of fee. Id. As Mr. Matthews opined, “[f]rom this list of restrictive easements the top category at 90% to 100% of the fee value fits much better,” as these easements do not “allow the land owner to use the land for private use.” PX 144.17 at JACKSON 004739. In categorizing trail easements in the Sherwood matrix’s zone of 75-89% of fee value, along with pipeline, drainage, and flowage easements, Mr. Sheppard ignored the Plaintiff property owners’ inability to exclude the public from their land. Id.; see Tr. 462-64, 472; Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 , 435 (1982) (describing the right to exclude others as “one of the most treasured strands in an owner’s bundle of property rights.”). In listing the uses that the property owners could still make of the encumbered trail corridor Mr. Sheppard merely referenced rights enjoyed by the general public such as walking or biking and proximity to the trail. Tr. 480-81. Rights held by the general public, however, are clearly not rights that define individual property ownership. See United States v. Craft, 535 U.S. 274 , 278 (2002). Mr. Sheppard’s conclusions that “there is no aesthetic quality lost as a result of the trail” and “no expectation that rail cars will use the trail,” contradict the testimony of credible witnesses who observed the impact of the trail firsthand as well as the legal import of rail-banking. DX 94 at 184. Plaintiff Robert Dew testified that noise and traffic had “certainly picked up,” since the trail was constructed, and Plaintiff James W. Johnson testified that people drive automobiles and all-terrain vehicles on the trail and cited threats and alarming encounters with trespassers coming from the trail, including an incident where a trespasser drew a sawed-off shotgun. Tr. 41, 77, 81, 105-06. Mr. James K. Johnson, the forest manager for a deceased Plaintiff, testified that the trail brought concerns of illegal dumping and increased risk of wildfires: There’s an ongoing problem of people just backing a truck somewhere in the middle of the night and dumping stuff. And there’s actually a mattress and a chair we saw yesterday on the rail corridor and there’s places that could be dumped on [the Dixon property] just as easily. 14 Tr. 119; see Tr. 108-09, 119-20. Mr. Sheppard’s conclusion that there is no expectation that rails cars will ever use the trail contradicts statute and precedent. Railbanking is a feature of the NITU, and contemplates that the Trail may be converted to railroad or transit use. See 16 U.S.C. § 1247 (stating that the Trails Act was enacted “in furtherance of the national policy to preserve established railroad rights-of-way for future reactivation of rail service”); Caldwell, 391 F.3d at 1229 (stating that the effect of the NITU is that “the STB retains jurisdiction for possible future railroad use”); Birt v. Surface Transp. Bd., 90 F.3d 580 , 583 (D.C. Cir. 1996) (“The rail line . . . retains the right to reassert control over the easement at some point in the future if it decides to revive rail service.”). In sum, Mr. Sheppard’s opinion that the owners retain 15% of fee simple ownership is unpersuasive. In contrast, Mr. Hodge persuasively opined that the property owners retain virtually no valuable rights in the encumbered land, warranting compensating Plaintiffs for the full fee simple value of the encumbered portion of their property. Tr. 219-23. Mr. Hodge explained: In my appraisal of these properties and in my appraisal of properties in other Trails Act cases I have conducted numerous interviews of property owners, real estate agents, and others in the marketplace. While some individuals appreciate the presence of a public recreational trail in their community, the overwhelming number of persons I have interviewed all expressed significant concerns about loss of privacy, greater potential for vandalism and increased public access and traffic crossing their property. It is also important to distinguish the perception of a benefit of a public recreational trail in the community from the burden of a trail across a specific owner's land. Furthermore, the scope of this new rail-trail corridor easement is not for just a public recreational trail. The nature of the easement includes the possibility a railroad could be built across this corridor in the indefinite future. A knowledgeable buyer purchasing the property in the after-taken condition would pay less for the property knowing this. Common sense, as well as my experience as an appraiser and my interviews with owners, all confirm this point. I have never encountered a situation where a buyer would pay the same amount for home with a railroad right of- way across a portion of the backyard as for a similar home without a railroad right-of-way. So too with a public corridor. It has been my experience as an appraiser that one of the significant features of property (especially residential property) is privacy and the ability to exclude others. A property encumbered by a public easement that reduces the owner's ability to exclude the public and shield his home from an adjoining public corridor is less valuable than a property that is not encumbered by such an easement. PX 217 at 12-13. In Rails-to-Trails cases, the Court has consistently held that the owners of land subject to a trail easement retain virtually no rights in the encumbered land and awarded the plaintiffs the fee simple value of the encumbered parcel. In Moore v. United States, 54 Fed. Cl. 747 , 751 (2002), the Court held that “the right of way parcel should be diminished 100% in the ‘after’ analysis because the landowners had no effective remaining use of the property.” See Howard v. United 15 States, 106 Fed. Cl. 343 , 367 (2012) (stating that properties subject to a trail easement “would appear to be lost to the fee holder for all intents and purposes in perpetuity.”); see also Childers v. United States, 116 Fed. Cl. 486 , 524 (2013); 15 McCann Holdings Ltd. v. United States, 111 Fed. Cl. 608 , 626 (2013). Based upon the record as a whole, this Court concludes that Plaintiffs retain virtually no rights in the encumbered land and awards Plaintiffs 100% of the encumbered land’s fee simple value as part of just compensation for the taking. The Experts’ Methodologies to Value the Property Interests Taken The value of the property interest taken in a Rails-to-Trails case is determined using the “before-and-after” method of valuation. Plaintiffs’ expert Mr. Hodge explained: The "before-taken" value is the market value of the fee estate assuming the property was unencumbered by the rail-trail corridor easement and each landowner had the right to use and possess their property. The "after-taken" value is the market value of the fee estate as now encumbered by a new easement for public recreational and a possible railroad in the indefinite future. The difference between the before-taken and after-taken value is the fair market value of the property rights taken from each owner. PX 217 at 6-7. Both Plaintiffs’ and Defendant’s experts used sales comparison analyses to calculate their before-and-after valuations of the subject properties. Id. at 6-7 ; DX 94 at 21. Plaintiffs’ Expert’s Sales Comparison Analysis Using the sales comparison analysis method prescribed by the treatise The Appraisal of Real Estate (2013), 16 Mr. Hodge determined the value of the land taken by the easement corridor. 15 In his report for the Government in another Rails-to-Trails case, Childers, an exhibit in this case, Mr. Underwood opined: This permanent easement takes most of the bundle of rights on the property, with the only entitlement remaining that it would be included in the size calculations of the total site for consideration of density/number of dwelling units that could be built on the site. As a result, it is my opinion that the permanent easement takes 99% of the value of the area encumbered by the easement. PX 207.2 at 44-45. 16 The Appraisal of Real Estate is “a treatise on the subject of appraisals published by the American Institute of Real Estate Appraisers.” Low v. Equity Programs, Ltd., 882 F. Supp. 344 , 348 (S.D.N.Y. 1995). It is “the leading real estate appraisal treatise” and is routinely cited as an authority on matters of real estate valuation. Appraisal Inst. v. Gallagher, No. CIV.A.3:02-CV- 2199-D, 2003 WL 21653861 , at *1 (N.D. Tex. Mar. 20, 2003); see McCann Holdings, 111 Fed. Cl. at 615-16. 16 He first researched recent sales of comparable properties to find properties as similar as possible to the subject property, considering characteristics such as property type, date of sale, size, physical condition, location, and constraints on the use of the land. PX 217 at 9. He then verified that the data obtained was factually accurate and that the transactions reflected arm’s length market considerations. Id. To determine the terms and conditions of prior sales, Mr. Hodge relied on qPublic and on the verification process used by the Newton County Tax Assessor’s office. Tr. 192-93, 299. Next Mr. Hodge selected “the most relevant units of comparison,” such as price per square foot, to try to “identify a unit of comparison that explains market behavior.” PX 217 at 9. Mr. Hodge cited “time adjustment/market conditions” as an element of comparison reflecting the change in value from the date of sale of the comparable property to the date of valuation if there had been a significant change in market conditions during that timeframe. Id. at 10. The date of valuation was the August 19, 2013 date of the taking, and the comparable sale dates ranged from January 31, 2008 to December 11, 2013. Tr. 254-55; PX 27 at JACKSON 002791; PX 38 at JACKSON 003037. Mr. Hodge did not make market conditions adjustments to the comparable properties because the country was in the midst of the Great Recession from 2008 to 2013, and lenders were reluctant to lend money during this period; he concluded that property values had been relatively stable over the time frame represented by the comparable data. PX 217 at 10. Mr. Hodge identified the type of ownership (such as fee simple, or a leasehold), property location, land size and shape, access to the property, and zoning and land use regulations, as other units of comparison. Id. at 10-11. Then, using those units of comparison, Mr. Hodge adjusted the prices of comparable properties to account for any differences between the subject and comparable properties, considering whether adjustments should be made in light of similar, inferior or superior characteristics. Lastly, Mr. Hodge synthesized “the various value indications produced from the analysis of comparable sales into a value conclusion.” Id. at 10-11. The comparable sales Mr. Hodge selected were all for fee simple estates, arm’s length transactions, and were as similar in size, location, and zoning to the subject property as possible. Id. at 10-11. After determining the price per square foot of each of the comparable sales, Mr. Hodge made the adjustments necessary for each individual property in a sales analysis grid. Id. at 11; see, e.g., PX 14 at JACKSON 001761; PX 29 at JACKSON 002928; PX 38 at JACKSON 003806. Then, upon finding the proper range of price per square foot for each of the comparable sales, Mr. Hodge interpreted the data to determine the proper price per square foot of the Plaintiff property. See, e.g., PX 14 at JACKSON 001761-1762. 17 Defendant’s Expert’s Sales Comparison Analysis Mr. Sheppard used a sales comparison analysis to calculate his before-and-after valuations of the subject properties. Mr. Sheppard researched land sales from an undefined “surrounding area,” between January 1, 2010 and August 19, 2013, which “yielded over 1,000 recorded transactions,” and discarded sales he did not deem comparable, such as bank foreclosures, non- arms-length transactions, or locations “considerably superior or inferior” to the subject properties. DX 94 at 18-19. 17 In some instances. Mr. Hodge used the price per acre. 17  Ultimately, Mr. Sheppard identified the following comparable sales for different categories of properties: DX 94 at 19-20. Mr. Sheppard noted the low number of comparable sales, stating: Given the scarcity of truly comparable data, due to the rural/suburban nature of the area and especially in light of a period of low sales volume after the Great Recession, the adjustment process does not yield a more credible result than carefully analyzing each subject property within a known array of sales available by property type, covering a variety of sale-specific, location-specific, physical- specific differences. DX 94 at 21. Mr. Sheppard grouped a subject property with sales of comparable properties of the same highest and best use, and then performed a “matched-pair” sales analysis, i.e. a comparison of two sales with similar charactaristics except for one overriding difference, in this case proximity to a trail corridor. DX 94 at 20-21, 176; Tr. 296. Using the results of the matched-pair analysis, Mr. Sheppard then adjusted the sale prices. Defendant’s Challenges to Plaintiffs’ Sales Comparison Methodology Defendant argues that Mr. Hodge’s comparable sales analysis is “flawed and inaccurate” because he failed to comply with the Yellow Book’s standards for verifying sales data, and instead relied on publicly-available data on the Newton County Tax Assessor’s “qPublic” website. ECF No. 264 at 62, 74, ECF 328 at 9. Defendant claims that for several sales, the qPublic data did not match the details on the underlying deed or contained typographical errors. The Yellow Book provides that “all comparable sales used must be confirmed by the buyer, seller, broker, or other person having knowledge of the price, terms, and conditions of sale.” DX 05 at 25 (emphasis added). Mr. Hodge did not contact individual parties to the comparable sales to confirm the data’s accuracy and instead relied on the Newton County Tax Assessor’s qPublic data. Tr. 192-93, 208. Mr. Hodge considered the Tax Assessor’s data to be adequately verified, as it is derived from documents signed by a party to the transaction or his agent who attests to the veracity of the information “under penalty of law”. Tr. 192. Mr. Hodge opined that using the Tax Assessor’s data is more reliable than asking the parties involved, sometimes years later, to recall the details of a particular transaction. Tr. 302-03. The Court finds that Mr. Hodge’s reliance upon the qPublic data provided by the Newton County Tax Assessor comported with uniform appraisal practice standards. The Appraisal Institute’s Uniform Standards of Professional Appraisal Practice do not require an appraiser to call 18 parties to a transaction to confirm the sale details. THE APPRAISAL FOUND., 2018-2019 UNIFORM STANDARDS OF PROFESSIONAL APPRAISAL PRACTICE (USPAP) 38 (2018). The source of the qPublic data is Form PT-61, a formal transfer form, completed by the parties to a sale which is recorded in the Georgia Superior Court, then entered into the County Tax Appraiser’s database, and finally entered into the qPublic database. Georgia regulations require parties to contemporaneously disclose sale data when a property is transferred, in order to assess the appropriate transfer tax, and such disclosure must be made on Form PT-61. Ga. Comp. R. & Regs. 560-11-2-.16(1) (2016). Required sales data includes the seller’s identity, date of sale, buyer’s identity, the intended use of the property, i.e., residential, agricultural, commercial, or industrial, as well as a “complete description of the property being conveyed,” including “the number of acres of property, map and parcel number, district, land lot and sublot and block,” and the “actual value of the consideration received by the seller for the real and personal property conveyed to the buyer.” Ga. Comp. R. & Regs. 560-11- 2-.16(1)(a)-(d). On the Form PT-61, the “seller or seller’s authorized agent” must certify that all the items of information entered on the transfer form PT-61 are true and correct (to the best of his knowledge and belief) and that he is aware that the making of any willful false statement of material facts will subject him to the provision of the penal law relative to the making and filing of false instruments . . . . Ga. Comp. R. & Regs. 560-11-2-.16(1)(f). The Chief Appraiser for the Newton County Tax Assessor’s Office, Mr. Corneil Marcus Jordan, testified in deposition that when a property is transferred, a Form PT-61 is typically completed in the office of the transaction’s closing attorney, then submitted along with the property’s warranty deed to the Clerk of the Superior Court, who sends the form to the Tax Assessor’s office where the data from the Form PT-61 is entered into the Newton County Tax Assessor’s WinGAP software database. DX 95 at 11-12; 34-36, 49. The “information is pulled” from the Newton County Tax Assessor’s database by a third-party entity and displayed on the qPublic website. Id. at 16. Although Mr. Hodge’s reliance upon the Newton County Tax Assessor’s data, complied with uniform appraisal standards, consideration is appropriate of alleged errors that may have made their way into the qPublic data. Defendant identified errors in the qPublic data for 10 of Mr. Hodge’s 37 comparable sales, including errors in the sale price or acreage. ECF No. 264 at 74- 77; PX 217 at 14-41. Upon review of the data and the parties’ arguments, the Court concludes that one error involving a wrongly priced comparable adversely impacted Mr. Hodge’s valuation. The qPublic Data Overstated the Sale Price for One Lot in Comparable Sale No. 3 Due to A Typographical Error Defendant argued: Mr. Hodge used comparable sale 3 (9159/9169 Malcolm), in his appraisals of 19  twelve properties.[ 18] Again relying solely on qPublic, he concluded that one lot sold for $4,800 and the other lot sold for $48,000 – for a total sales price of $52,800. The underlying deed for the sale shows that both properties in fact sold for $9,600. The Newton County Tax Assessor’s Office admitted that the $48,000 sales figure shown on qPublic is simply a typographical error. Thus, Mr. Hodge significantly overstated the actual sales prices by 60-75%. Tr. 582: 9-583:11; PX 44. ECF No. 264 at 75. The qPublic data for 9159 Malcolm Drive, which is 0.11 acres in size, shows a sale price of $48,000 on December 21, 2010, and the qPublic data for 9169 Malcolm Drive, a property of 0.12 acres in size, shows a sale price of $4,800 on December 21, 2010. PX 44 at JACKSON 004334, 36. Based on his review of the Form PT-61 for the sales of 9159 and 9169 Malcolm Drive, Mr. Jordan, the Chief Appraiser for the Newton County Tax Assessor’s Office, testified that the total purchase price for the two lots was $9,600, that each lot had sold for $4,800, and that the sales price of $48,000 for 9159 Malcolm Drive was “a typo of one too many zeros.” DX 95 at 47, 52, 57, 100, 102. 19 Due to this error, Mr. Hodge used a price per square foot of $5.27 for the 9159/9169 Malcolm comparable sale, which he found by dividing $52,800, the incorrect sale price because it used $48,000 for 9159 Malcolm, by 10,019 square feet, the size of the combined 9159/9169 Malcolm lots. However, the price per square foot should have been derived by dividing $9,600, the correct sale price of the combined lots, by 10,019 square feet to yield $0.96 per square foot. As a result of this error, Mr. Hodge used a price per square foot over five times higher for the combined lots in comparable 3 than the actual price per square foot. This error is problematic because Mr. Hodge only used two other comparables in reaching his valuations, and neither party addressed the error’s effect on valuation. Using the erroneous comparable which he valued at $5.27 per square foot and two other comparables -- 9179 Malcolm at $5.44 per square foot, 10173 Dinah Circle at $4.35 per square foot, Mr. Hodge valued 10 properties as follows: Plaintiffs’ Properties Hodge’s Before Hodge’s After Valuation Valuation Reginald Henry $4.00/sq. ft. $3.75/sq. ft. Property (Parcel 125) Sherman Smith Property $4.00/sq. ft. $3.75/sq. ft. (Parcel 132) 18 In its Post-Trial Brief Defendant states that Mr. Hodge used comparable 3 (i.e., 9159/9169 Malcolm) in his appraisals of 12 properties citing the transcript and Mr. Hodge’s appraisal report for one of those properties. However, Mr. Hodge’s individual appraisal reports indicate that Mr. Hodge only used this property for 10 properties described below. 19 Mr. Jordan testified that such errors occur in “less than 1 percent” of the data inputted into qPublic. DX 95 at 102. 20  Winston Munroe $4.50/sq. ft. $4.25/sq. ft. Property (Parcel 162) Rentrope Property $4.50/sq. ft $4.25/sq. ft. (Parcel 164) Alcide Property (Parcel $4.50/sq. ft. $4.25/sq. ft. 168) Semador Property $4.50/sq. ft. $4.25/sq. ft. (Parcel 171) Lockhart Property $4.00/sq. ft. $3.75/sq. ft. (Parcel 287) Joseph Marino Property $3.75/sq. ft. $3.50/sq. ft (Parcel 105) City of Covington 40,004 sq. ft. @ $3.10/sq. ft. Property (Parcel 123) $0.60/sq. ft. and 30,600 sq. ft. @ $3.50/sq. ft. Leonard Goss, Jr. $4.50/sq. ft $4.25/sq. ft. Property (Parcel 152) PX 217 at 66-67; PX 14 at JACKSON 001759-63; PX 15 at JACKSON 001830-34; PX 21 at JACKSON 002258-62; PX 22 at JACKSON 002329-33; PX 23 at JACKSON 002400-04; PX 24 at JACKSON 00247-75; PX 41 at JACKSON 004035-39; PX 42 at JACKSON 004105-09; PX 43 at JACKSON 004178-82; PX 44 at JACKSON 004315-19. Defendant asks the Court to conclude that this error along with other errors renders Mr. Hodge’s valuations unreliable, and Plaintiffs argue that this error would not have affected Mr. Hodge’s valuation. Neither party attempted to adduce additional evidence or offer meaningful argument on how the Court should assess this error. See Tr. 858, 962; ECF No. 332 at 15. Nonetheless, this Court is tasked with awarding Plaintiffs just compensation for the taking of their properties and must arrive at a reasonable assessment of this error’s impact on damages. See, e.g., Gadsden Indus. Park, LLC v. United States, 956 F.3d 1362 , 1372 (Fed. Cir. 2020) (affirming the trial court’s holding that it “may award damages, even if [it] does not fully credit [a] party’s methodology”). The Court has discretion in adopting a methodology that awards just compensation to a takings plaintiff. See generally Otay Mesa Property, L.P. v. United States, 779 F.3d 1315 , 1326 (Fed. Cir. 2015) (“We detect nothing inappropriate with the Court of Federal Claims looking at the evidence as a whole and using its own methodology to calculate a damages award.”); Precision Pine & Timber, Inc. v. United States, 596 F.3d 817 , 833 (Fed. Cir. 2010) (concluding that the Claims Court did not abuse its discretion by modifying plaintiff’s methodology for calculating damages). 21  It is clear here that Plaintiffs have been injured by the taking. It is also clear that the error in qPublic operated to inflate the valuations of a comparable property used in determining Plaintiffs’ losses. However, the factors Mr. Hodge applied in valuing each individual property based on the comparables cannot be quantified or replicated by this Court. 20 Rather, as detailed above, Mr. Hodge exercised his judgment as an appraiser and considered numerous units of comparison including location, land size and shape, access to the property, zoning and land use regulations to adjust the prices of comparables to account for any differences between subject and comparable properties. PX 217 at 10-11. As such, for the 10 properties that used the erroneously inflated comparable sale at 9159/9169 Malcolm, the Court adopts Mr. Hodge’s damages calculation reduced by 5%. The Court reduces Mr. Hodge’s valuation of the land within the easement for these 10 properties as follows: Plaintiffs’ Hodge Damages Court Awarded Properties for Value of Damages of Land within Value of Land Easement within Easement Reginald Henry $17,800 $16,910 Property (Parcel 125) Sherman Smith $25,700 $24,415 Property (Parcel 132) Winston Munroe $11,475 $10,901.25 Property (Parcel 162) Rentrope $11,700 $11,115 Property (Parcel 164) 20 As noted in one treatise: It is generally held improper to determine market value on the basis of simple averaging of the sales prices of other properties without any adjustment of such prices for differences between properties. It seems unlikely, however, that this rule would prohibit the determination of value by computing the weighted average of adjusted prices. The latter process requires the exercise of expert judgment both in adjusting the compared sales prices and in determining the relative weight to be given to each sale. 5 DANIEL F. SULLIVAN, AM. JUR. PROOF OF FACTS 2d 411, § 8 Determination of value of subject property (2000) (citing Latham Holding Co. v. State, 209 N.E.2d 542 , 543 (N.Y. 1965)). 22  Alcide Property $10,125 $9,618.75 (Parcel 168) Semador $12,263 $11,649.85 Property (Parcel 171) Lockhart $20,700 $19,665 Property (Parcel 287) Joseph Marino $19,688 $18,703.60 Property (Parcel 105) City of $9,368 $8,899.60 Covington Property (Parcel 123) Leonard Goss, $7,875 $7,481.25 Jr. Property (Parcel 152) PX 217 at 66-67. Defendant Has Not Established That Any Other Errors in Comparable Sales Pricing Require Adjustments to Mr. Hodge’s Valuation As a claimed second error, Defendant cited comparable sale 1 -- a sale which Mr. Hodge used in the appraisal of six properties encompassing seven parcels. Defendant argues: For comparable sale 1 on County Line Road, Mr. Hodge looked only at qPublic which lists the property’s size as 32 acres (DX 81). The deed shows that 52.28 acres were sold. Id. Using the correct acreage significantly decreases the per acre sales price. But Mr. Hodge did not discover the error in the qPublic information because he did not even review the deed from the sale, much less talk to anyone who could explain the terms of the sale. Tr. 214:4-19; 215:15-25. ECF No. 264 at 77 (emphasis added). The qPublic data for the County Line Road sale shows a January 31, 2008 sale of 32 acres at 1710 County Line Road, Mansfield Georgia for $193,700 making the price per acre $6,053, but the warranty deed indicates that this parcel is 52.28 acres. PX 29 at JACKSON 002946; DX 81 at 002. However, the difference in acreage is attributable to the fact that the additional 20.28 acres comprising this parcel was located in an adjoining county, Jasper County, and not listed with Newton County’s qPublic data. The sales price for that acreage did not appear on the Newton County database. 23  As Mr. Hodge explained when Defendant’s counsel asked him about the discrepancy in acreage between the qPublic data and the warranty deed for the County Line Road property: Yes. I checked on that, with the assessor’s office yesterday, after being provided with the deed, and the 32 acres is that portion that’s located in Newton County. There is an additional acreage located in Jasper County, and as a result, the $193,700 of the sale price is that portion that’s in Newton County. There is an additional acreage for an additional $120,000 of property that was located in Jasper County. So qPublic reflects only that portion that was located in Newton County, not in the entire transaction. Tr. 214-15 (emphasis added). In Mr. Hodge’s view, this information “shows the accuracy of the assessor’s interpretation of the data from Newton County.” Tr. 215. Thus, because an additional $120,000 was paid for the Jasper County portion of the property -- the 20.28 acres not listed in Newton County qPublic data -- Mr. Hodge neither understated the total acreage of this comparable nor “significantly overstated” the price per acre. As such, this claimed error does not warrant adjusting Mr. Hodge’s appraisals for the six affected properties. With respect to a claimed third error, Defendant argued: For the Highway 11 [comparable] sale, Mr. Hodge listed the amount of land sold as 34.67 acres. The actual acreage was 39. 33 acres, which lowers the price per acre. Mr. Hodge did not investigate to determine why the sale is listed on qPublic as “unqualified.” Nor did the fact that the grantor was a bank cause him to question whether the sale was arms-length. DX 82; Tr. 210:12-212:10; 213:2-4. ECF No. 264 at 76-77. Mr. Hodge used the Highway 11 transaction as one of three comparable sales for his appraisals of six properties: three Category 5 properties and three Category 9 properties. Defendant has not established that the error in acreage so inflated Mr. Hodge’s valuation that a reduction in an award of just compensation is warranted. There is no evidence as to why the unqualified designation was listed on qPublic or what the import of the bank being the grantor was on this particular transaction, or what impact these factors may have had on Mr. Hodge’s analysis or appraisal. As a claimed fourth error, Defendant argued: Mr. Hodge used comparable sales 55 (50 Tuscany Drive), and 56 (40 Tuscany Drive), in his appraisals of eight properties, relying on qPublic, which shows that both properties sold for $15,500. In fact, sales 55 and 56 were part of a transaction that included the sale of fourteen lots that varied in size from one acre to 1.8 acres. DX 93. The County Appraiser’s office just divided the $217,000 sales price for all lots by 14 to arrive at the $15,500 purported sales price for each lot. DX 95 at 95:18- 96:3. Given the variation in lot sizes, it is highly unlikely that all fourteen sold for the same price. Moreover, the deed shows that the sale also included common area. DX 93. Because Mr. Hodge did not speak to anyone knowledgeable about the transaction to confirm the sale, he was unaware of the above discrepancies, which clearly indicate that his $15,500 price for sales 55 and 56 is inaccurate. Tr. 577: 9- 579:8; 579:15-580:11. 24 ECF No. 264 at 74-75. None of Defendant’s three experts addressed if, or to what extent, these “discrepancies” might warrant a reduction in damages, and the record suggests their impact would be de minimis. The warranty deed executed on April 24, 2009 for the sale of “Lots 1-14, inclusive, of Tuscany Place” to Ms. Nancy Mock shows a real estate transfer sales tax of $217 paid to the clerk of court, denoting a total sales price of $217,000 for all 14 lots, and Mr. Jordan agreed that the individual $15,500 lot prices were reached by dividing $217,000 by 14 lots. DX 93 at US_0003427; DX 95 at 94-96. The deed does not show the size of each individual lot -- only a conglomerate area for all 14 lots. Nor does it show the area attributable to common space. As such, Defendant has not demonstrated that Mr. Hodge’s comparable sales prices for 50 and 40 Tuscany Drive were so flawed as to taint the resulting appraisals. The remaining four errors that Defendant identified include a sale on Old Atlanta Road which was part of a series of transactions, sales of two properties on Elks Club Road which Defendant contended were not arm’s-length transactions, and three sales which were “part of a bulk sale transaction,” rendering it unclear “how the individual lot prices were derived.” ECF No. 264 at 75-77. However, Defendant did not identify any incorrect qPublic data associated with these sales and did not demonstrate how these alleged errors may have impacted the appraisals. As such, the Court does not reduce Mr. Hodge’s appraisals based upon these alleged errors. Mr. Hodge Properly Considered Adjustments for Market Conditions Defendant argues that Mr. Hodge’s comparable sales analysis is unreliable because he failed to properly adjust comparable sale prices to account for changing market conditions, positing that the Great Recession caused a sharp decline in Newton County housing prices from 2008 to 2012, warranting an adjustment in comparable sale prices to reflect this market shift. ECF No. 264 at 78-79. Using the August 19, 2013 date of the NITU issuance as the date of the taking, Mr. Hodge used comparable sales dating from January 2008 to November 2013. ECF No. 17-3 at 1; PX 217 at 15; ECF No. 265 at 129. Mr. Hodge considered whether a market conditions adjustment was appropriate, but concluded that it was not, because property values were relatively stable over the time frame represented by the comparable data. Tr. 180-81, 255; PX 217 at 10. Mr. Hodge explained: [T]here was not a sufficient number of sales that you could actually take a look at and say there has been an increase or decrease [in property values]. We're looking at, you know, the start of 2008, and through mid 2013, we were in the midst of the Great Recession, and, you know, property values, when you look at any kind of a trend during that period of time with the data that I had, there really wasn't any indication that there was significant increase in property values as a result of the passage of time. So I did not make a market conditions adjustment, but it was considered when I look at how did I come up with my final per-acre value, and, you know, I lean more towards the upper end because as time went on through into '12 and '13, land values had recovered, and even though they hadn't significantly increased, there was at 25  least some indication in the market that the market was strengthening. So that was taken into consideration, not with any empirical evidence, but with judgment and analysis of the data that I had available to take a look at. Tr. 254-55. Six of the comparable sales Mr. Hodge considered occurred in 2008, with the earliest in January 2008. ECF No. 265 at 129. Defendant argues that Mr. Hodge’s valuations are unreliable because the 2008 sales occurred at the peak or right after the burst of the housing bubble, and under much different economic conditions than those existing on the date of the taking, August 29, 2013. Tr. 628; DX 26 at US_0002650. Citing a chart of Newton County home sales from 1987-2017 prepared by the United States Federal Housing Finance Agency, Defendant’s expert economist, Dr. Neuberger, testified: “[y]ou can see dramatic declines in the home price index [from 2008 to 2012]. The bottom is reached in 2012, and there's a slight increase in 2013 as the beginnings of a recovery in housing markets in Newton County started to occur.” Tr. 628; DX 98. Dr. Neuberger opined that “some of [Mr. Hodge’s comparable sales] transactions, many of those transactions, occurred under vastly different economic circumstances than those that prevailed around the time of appraisal date, [August 29, 2013,] and that the failure to make those adjustments reduces and undermines the reliability of Mr. Hodge’s appraisals.” Tr. 620; see ECF No. 264 at 79. As Plaintiffs point out, the United States Federal Housing Finance Agency’s chart of Newton County home sales, on which Dr. Neuberger relies, details home prices, and not land prices. DX 26 at US_0002650; ECF No. 265 at 130. Dr. Neuberger acknowledged at trial that Mr. Hodge’s assignment was valuing land prices, not home prices. In addition, he agreed that the Housing Finance Agency’s chart does not depict all housing sales in Newton County, but only sales based on federally-backed mortgages. Tr. 635-36, 39. Dr. Neuberger also acknowledged that the Housing Finance Agency’s county-wide chart did not specifically consider “unique” housing markets such as the Covington Historic District. Tr. 639-40. At trial, Mr. Hodge explained there “was insufficient data to develop” reliable conclusions about changes in the market conditions because there were relatively few sales in the Newton County and Covington markets. Tr. 261. The trial testimony of Plaintiff-landowner Mr. Dew supports Mr. Hodge’s conclusion about the scarcity of comparable sales data, especially for homes in Covington’s Historic District. Mr. Dew testified that “there’s been a few [houses in the Historic District] that sold and others haven’t sold in 100 years.” Tr. 33. The Court finds that Mr. Hodge reasonably concluded that the data did not support making adjustments for market conditions. See PX 217 at 15; see also Tr. 732 (Matthews stating “I can see where an appraiser could convince himself that [making no adjustments] would be the best way to handle it, because there’s not enough data to prove one way or the other.”). As stated in J.D. Eaton’s Real Estate Valuation In Litigation, though appraisers must consider whether adjustments are necessary, they are not required to make such adjustments if the appraiser deems it inappropriate based on his study of the market. See REAL ESTATE VALUATION IN LITIGATION 208 (2d ed. 1995); PX 217 at 10, 15; Tr. 254-55. Based on the record as a whole, the Court adopts the valuations of Plaintiffs’ expert, Mr. Hodge, adjusting his appraisals of the 10 properties using 9159/9169 Malcolm as a comparable sale downward by 5%. 26 Damages to the Remainder In addition to the value of the property actually taken, just compensation for a Fifth Amendment taking includes severance damages for any diminution in value to the owner’s remaining property resulting from the taking. Hendler v. United States, 175 F.3d 1374 , 1383 (Fed. Cir. 1999). Both experts agree that a “paired-sales analysis” is the preferred approach to determine any diminution in value to the remainder. See PX 217 at 11; DX 94 at 21, 164; 176; Tr. 296 (Hodge) (“[P]aired sales are basically you’re looking at two sales with one significant difference between the two sales that you can measure.”). Mr. Hodge found that there was insufficient market data on comparable properties to conduct a valid paired sales analysis with respect to the remainder properties. Tr. 190; PX 217 at 11-12. Instead, he considered the “changes in the use and utility of the remaining property” and made individual determinations of the diminution in value of the remainder properties based on the properties’ “specific and unique characteristics.” Id. at 12 . Mr. Hodge elaborated with respect to his appraisal of the property of Mr. Dew: MR. HEARNE (COUNSEL FOR PLAINTIFFS): And, so . . . you concluded that there was also a diminution in value of the remainder, correct? MR. HODGE: That is correct. And that’s reflected in the 15-cent per square foot difference in the value before and after. THE COURT: And that would be the difference in the value of the property that remainder, the 50,000 square foot property that remained? MR. HODGE: That is correct, yes. Tr. 318-319. Due to the “loss in site area and the impact of having a public trail adjacent to the property,” Mr. Hodge found that Mr. Dew’s remainder property had decreased in value by $7,586. DX 5 at JACKSON 001195; PX 217 at 46. In analyzing the effect of the trail easement on the remainder value of different properties, Mr. Hodge divided the properties into nine categories: PX 217 at 3. For all these categories of properties, Mr. Hodge: determined the percentage valuation by taking into account a variety of factors, 27  including the proximity of the easement to the home, privacy and security concerns, the topography of the property in relation to the easement, the necessity to fence, berm, or buffer the private space from the public space, and the increased access the general public has to the property by reason of the rail-trail corridor easement. PX 217 at 15. Mr. Hodge also considered “loss of access [to a public road], and the potential for increased vandalism,” which could “diminish the desirability and marketability of the property.” Id. at 11 . The majority of Mr. Hodge’s individual assessments of damage to the remainder range from 2-45% of the subject property’s “before” value: 6-14% for residential properties, 9-26% for improved commercial properties, 2-45% for vacant commercial properties, and 2-45% for agricultural properties. PX 217 at 15, 18, 36, 39, 41. There are, however, three outlier properties where values decreased more dramatically: Parcels 57, 123, and 187. Mr. Hodge found that the value of Plaintiff Thorpe’s property, Parcel 57 had decreased by 60%; that the City of Covington’s property, Parcel 123, had decreased by 82%; and that Plaintiff Betty Pickens’ property, Parcel 187, had decreased by 74%. PX 217 at 15, 18, 20, 44. Mr. Hodge singled out the deleterious impact to properties bisected by the trail, such as the Thorpe property, Parcel 57: Jennifer Thorpe's home was unique because the easement takes a sharp tum south and travels over her property bisecting it into two separated parcels. The imposition of the rail-trail corridor easement substantially reduced the value of Jennifer Thorpe's remaining property. The easement brings the general public to within a few feet of her home and bisects her backyard. A buyer of the Thorpe property would likely give no value to the triangular section on the opposite side of the easement, as there would be no access to it directly from the home or yard without crossing the rail-trail corridor. And, if the buyer wished to fence the public space from the private space, it would further render the southwest comer of Ms. Thorpe's lot completely inaccessible for use as part of the residential yard. Id. at 15 . Plaintiff Thorpe’s property is depicted below: 28 DX 17C at US_00003178. Mr. Hodge found that the value of the Thorpe property was diminished by 60 percent because “the rail-trail corridor easement bisected her property causing her to lose the use of most of her backyard and the existing access from Butler Avenue.” PX 217 at 15. Mr. Hodge found similar diminution in value to the remainder of Ms. Dixon’s property, Parcel 186, reasoning: Ms. Dixon’s property also suffered severance damages because of the same need to cross the easement in order to access a portion of her property. Ms. Dixon has six acres of property that is only accessible by crossing the trail. These six acres are unimproved and had a highest and best use as agricultural land in August 2013. However, without documented access to those six acres, it is my opinion that a knowledgeable buyer in August 2013 would have paid about half the market value of those six acres because of the lack of any guaranteed unlimited and perpetual access over the easement. PX 217 at 43. Mr. Hodge determined that Plaintiff Betty Pickens’ property, Parcel 187, had decreased in value by 74%. PX 217 at 44. Parcel 187 is now accessible only by crossing the trail easement from the public road. Id. at 43-44 . As Mr. Hodge states in his report, “[i]n the ‘before’ scenario, Ms. Pickens would not have to worry about her access off of County Road 213 to her residence, nor would any prospective buyer of the property.” Id. at 44 . After the taking, however, the Trail bisects the majority of her property, where the residence is, from the access point where the property touches County Road 213. Thus, she cannot guarantee to a potential buyer any access 29 from the property to County Road 213 without having to cross the Trail due to the taking. The Pickens property is depicted below: PX 29 at JACKSON 002938. With respect to the City of Covington’s property, Parcel 123, Mr. Hodge determined that the value of the remainder was diminished by 82 percent. The trail easement bisects Parcels 57 and 187, and separates Parcel 123 from residential properties which could have potentially acquired it to enlarge their own properties. Id. at 16, 20 ; PX 29 at JACKSON 002910. Mr. Hodge noted that “[d]ue to the lack of access crossing the subject property the southern portion of the site will no longer be able to be assembled to the adjacent parcels to the west.” PX 43 at JACKSON 004143. He explained: “The City of Covington' s property (123), shown below, loses substantial value because in the "before" condition it would have been desirable to assemble with the homes and properties on the other side of the right-of-way. After the taking, the parcel loses much of its value.” Id. at 20 . 30  Id. at 20 . Defendant raises several challenges to Mr. Hodge’s calculations of damages to the remainder. First, Defendant argues that Mr. Hodge did not support his findings with sales evidence or other empirical data, or conduct a “study to show causation of damages from proximity to the trail.” ECF No. 264 at 21, 64-69, 72-73; ECF No. 303 at 63-66. Mr. Hodge acknowledged that a paired-sales analysis is “the preferred approach to estimate the diminished value of the remainder parcel due to the effect of the easement.” PX 217 at 11. Mr. Hodge “looked for [comparable] sales,” but there was “such a limited amount of data available in Newton County for all of these different property types that it was impossible to do an accurate paired sales analysis.” Tr. 190, 227. Mr. Hodge explained: The preferred approach to estimate the diminished value of the remainder parcel due to the effect of the easement would be a paired-sales analysis. But a paired- sales analysis is only valid if there are a sufficient number of comparable properties with similar characteristics sufficient to isolate the effect of the presence of the rail- 31  trail corridor on the value of the property, as opposed to other differences between the properties. To be valid a paired-sales analysis one must have a sufficient number of arms-length sales of properties that are sufficiently similar. I conducted extensive research to find sales of a sufficient type and character that could provide a basis to prepare a valid paired-sales analysis. There were not, however, sufficient sales of sufficiently similar properties to conduct a valid paired-sales study. There have been studies completed which, in my mind, are inconclusive. Some of the studies completed indicate some benefit to property values and others show significant diminution in value, particularly for properties that are adjacent to the corridor. As a result, rather than attempting to empirically quantify the loss in value I have looked at the issue from a more common sense, rather than empirical, recognizing that a property along the corridor would be negatively affected due to the impact of the placement of an easement across the property. PX 217 at 11-12. Mr. Hodge’s conclusion that there were insufficient comparable sales to perform a valid paired-sales analysis to determine severance damages is supported by both his own and Mr. Sheppard’s data. Mr. Sheppard also cited the “scarcity of truly comparable data, due to the rural/suburban nature of the area and especially in light of a period of low sales volume after the Great Recession.” DX 94 at 21. The Court finds that in this situation where there is a dearth of appropriate comparable sales data, Mr. Hodge’s “common sense” approach of assessing changes in the use and utility of individual remainder properties was reasonable and supported by the record. Mr. Hodge considered both the physical changes to the remainder post taking and credible landowner concerns about trespass, loss of privacy, increased noise and traffic, and dumping and wildfires and lack of security. Id. at 141 . 21 Tr. 39, 41, 56, 81, 105, 119-20. One Plaintiff, James W. Johnson, became emotional when testifying about the negative changes wrought by the trail easement on his property. Tr. 74-75; 105-06. The Court found this witness credible and his concerns, genuinely held. 22 Defendant claims that Mr. Hodge failed to support his finding that the trail easement impeded access to the Pickens and the Mocks’ property. ECF No. 264 at 70-71; ECF No. 303 at 21 Mr. Hodge met directly with 26 landowners and their representatives and conducted one telephonic interview. Tr. 174; PX 217 at 14, 17, 25, 31, 35, 37-38, 40. 22 The Court recognizes that a witness, Mr. Lamar Maurice Carter, expressed a contrary view of the Trail and testified that the idea of a trail was appealing for him because his friends could come and visit from the trail and it made him happy to watch the people walking by. Tr. 373, 377. Mr. Carter additionally testified that he preferred the idea of a trail to the train, he did not have security concerns, and he and his wife used the building of the trail as an opportunity to fix their wall that was in disrepair and build windows into the wall to look out onto the trail. Tr. 360-62, 364-65, 372-73, 376. The Court finds that this witness’s positive view of the trail must be viewed in the context of his leadership and support of the construction of the trail. Mr. Carter served as the Chair of the Newton County Trail Path Foundation, the easement-holder in this case, from 2009-2013, donated money for the trail’s construction and testified that he is “kind of proud” of the trail. Tr. 352-54, 373. 32 66-67. However, Mr. Hodge’s finding that the Mocks and Ms. Pickens must cross the easement to access their properties is borne out by the record. PX 29 at JACKSON 002897; PX 38 at JACKSON 003776. As depicted below, the trail easement divides Parcel 276, owned by Plaintiffs Ricky and Nancy Mock, from the public road, Highway 213: PX 38 at JACKSON 003812. In his appraisal report for the Mocks’ property, Parcel 276, Mr. Hodge stated that the easement runs “between the subject property and Highway 213, effectively diminishing any access potential from Highway 213 onto the subject property.” Id. at JACKSON 003776, 88. Mr. Hodge determined that “[d]ue to the inability to cross the former railroad [right-of-way], access to the property from Hwy. 213 has been eliminated.” Id. at JACKSON 003779. He concluded that the Mocks’ property was diminished in value by 14% due to the loss of land area and frontage access along Hwy. 213. Id. at JACKSON 003809. Defendant makes the curious suggestion that the Mocks could access their property by walking or driving across the trail from Highway 213, arguing: Under Georgia law, the owner of a servient estate can make any use of the easement that does not prevent the easement’s use . . . . Thus, as a matter of law, so long as crossing the trail does not preclude public trail use, it is permissible. And there is, of course, no evidence that walking or driving across the trail prevents its use as a walking/biking trail. ECF No. 264 at 70. Defendant does not, however, dispute Mr. Hodge’s finding that the Mocks 33 and Mrs. Pickens must cross the easement to access their properties. There is no suggestion that these landowners had vehicular crossing rights over the Trail. As such, the Court credits Mr. Hodge’s opinion that a reasonable buyer would be concerned about having to cross a trail easement to access these properties. Defendant also faults Mr. Hodge for not analyzing the “cost to cure” the detriments resulting from the trail easement, such as erecting fences to compensate for loss of privacy or installing security cameras to counter increased vandalism. ECF No. 264 at 71-72. The cost to cure—or the cost of mitigating damages caused by the taking—provides an alternative means of quantifying severance damages, “[w]hen the cost of curing the injury to the remainder is less than the outright diminution in its value uncured.” United States v. 2.33 Acres of Land, 704 F.2d 728 , 730 (4th Cir. 1983) (citing United States v. Dickinson, 152 F.2d 865 , 870 (4th Cir.1946), aff’d, 331 U.S. 745 , 67 (1947)); Julius L. Sackman, Nichols on Eminent Domain § 14A.04[2][a] (3d ed. 2013). There is, however, no persuasive evidence in the record on what the cost to cure would have been in the event any damages to the remainder were deemed appropriate and no showing whether the cost to cure would have been less than the diminution in value to the remainder. As such, Defendant has failed to establish that Mr. Hodge’s expert opinion is flawed because he failed to offer an opinion on the cost to cure. Defendant’s Expert’s Opinion that Adjacency to the Trail Increased the Value of 22 Properties Mr. Sheppard conducted a paired sales analysis to determine any damages or benefit to the remainder property, using sales from “other trails in Newton County and in surrounding submarkets throughout Georgia.” DX 94 at 21, 164. He looked at several subdivisions along other trails in the area and concluded “that the trail corridor likely commands a negligible/small premium in certain instances, but not a discount” and opined that buyers paid between $5,000-$5,800 more for residential properties “abutting trails in Newton County.” DX 94 at 155-57, 164, 168. Mr. Sheppard referenced three sales of side by side, similar-sized homes in the Highgrove subdivision in Newton County, Georgia: 10, 30, and 40 Fernhill Court, to opine that “a $5,000± premium was paid for a home, due solely to its proximity to the concrete-paved Eastside Trail.” Id. at 157. Mr. Matthews found that “the overall impact of the trail being hidden by trees,” the lot not actually abutting the Eastside Trail and its location on a curve “would diminish any influence of the trail [on] the lot’s value in this specific case.” PX 144.17 at JACKSON 004730. Mr. Sheppard admits that none of the Fernhill Court properties are directly abutting the trail. See Tr. 489-90; DX 21 at US_0002773. In the Court’s view, the Fernhill Court properties are not sufficiently analogous to provide a useful comparison, as those properties did not abut the trail were buffered from the trail by some woods and thus did not raise the same negative concerns as the subject properties. See id. at US_0002774; see also Hardy v. United States, 141 Fed. Cl. 1 , 26 (2018). In addition to the Fernhill Court properties, Mr. Sheppard analyzed 30 residential home sales fronting the subject corridor in Newton County, between May 1, 2013 and December 7, 2016, as well as sales of 12 homes in Brookline subdivision in Newton County, which fronted the trail corridor and of nine homes which did not. DX 94 at 154, 159-60. Based on these sales, Mr. Sheppard concluded that the average Brookline home off the subject corridor sold for $11.01 per square foot less than the average Brookline home on the corridor which equated to “an $18,563 34 premium for abutting the subject corridor – prior to considering time aspects.” Id. at 160 . In his market adjustment for the Brookline properties, Mr. Sheppard found that properties on the trail corridor commanded “a premium of $15,000 for the whole property,” and reduced that premium due to “the woods-view aspect . . . leading to [an] estimate that a $5,000±premium was attributable to the underlying land.” Id. at 160-61 . The Court finds Mr. Sheppard’s comparable sales analysis unpersuasive. All but two of the sales he identified occurred after the August 19, 2013 date of the taking, and all the sales occurred before a portion of the trail was paved in March 2017. See id. at 158, 160 ; PX 144.17 at JACKSON 004730-32. Such sales fail to aid in determining the impact of the trail on the value of the subject remainder properties. Importantly, there is an overarching problem with Mr. Sheppard’s finding that no remainder property decreased in value at all as a result of the trail easement. DX 94 at 188-209. In so opining, Mr. Sheppard ignored loss of privacy, accessibility, and increased security concerns Plaintiffs suffered due to the trail. Mr. Sheppard did not include individual assessments of the impact of loss of privacy, noise, trash, and security issues. See, e.g., id. at 167 ; see Tr. 425-26. Mr. Sheppard’s opinion particularly strains credulity with respect to Plaintiff Jennifer Thorpe’s property where the trail easement bisects the property. Mr. Sheppard found that the “before” value of the property was $11,441. DX 17C at US_0003188. Due to the $5,000 “special benefit” resulting from the property’s trail frontage, Mr. Sheppard found that the Thorpe property increased in value by $2,840 due to the taking and has an “after” value of $14,281. Id. at US_0003170-71; see also Tr. 695-97. Mr. Sheppard applied this identical $5,000 “special benefit” to 22 remainder properties with “direct access and frontage” on the trail. DX 94 at 157, 200. For each of these 22 properties, Mr. Sheppard found that this $5,000 increase in the value of the remainder exceeded the lost value of the property’s encumbered land, that all 22 properties had a net increase in value due to the imposition of the trail easement, and that the owners were entitled to no compensation. Id. at 200 - 09. Mr. Sheppard’s conclusion that the trail creates a substantial benefit to an adjacent home’s value is not supported by the record. Based upon the record as a whole, the Court credits Mr. Hodge’s analysis of the damages to the remainder properties, not Mr. Sheppard’s. The Appropriate Interest Rate Also pending before the Court are the parties’ cross-motions for partial summary judgment as to the appropriate interest rate to provide Plaintiffs just compensation. Plaintiffs argue that Moody’s Composite Index of Yields on Aaa Long Term Corporate Bonds (“Moody’s rate”) should be applied because it provides a reliable indicator of the rate of return that a “prudent investor” would obtain. ECF No. 162 at 4. Defendant contends that the interest rate prescribed in the Declaration of Takings Act (“DTA”) would appropriately compensate Plaintiffs for the delay in payment of just compensation. ECF No. 178 at 7. For the reasons explained below, the Court applies Moody’s rate to calculate delay damages in this case. The Fifth Amendment mandates that the federal Government pay just compensation when it takes private property for public use. U.S. CONST. amend. V; United States v. Miller, 317 U.S. 369 , 373 (1943). Just compensation is generally determined by “the fair market value of the property on the date it is appropriated.” Kirby Forest Indus., Inc. v. United States, 467 U.S. 1 , 10 35 (1984). In cases where significant time has elapsed between the date of the taking and payment of just compensation, the Government must apply a sufficient interest rate to put plaintiffs in the same position as though just compensation had been paid contemporaneously with the taking. See Tulare Lake Basin Water Storage Dist. v. United States, 61 Fed. Cl. 624 , 627 (2004) (citing Seaboard Air Line Ry. v. United States, 261 U.S. 299 , 306 (1923)). As the Supreme Court has explained: If the Government pays the owner before or at the time the property is taken, no interest is due on the award . . . But if disbursement of the award is delayed, the owner is entitled to interest thereon sufficient to ensure that he is placed in as good a position pecuniarily as he would have occupied if the payment had coincided with the appropriation. Kirby Forest, 467 U.S. at 10 (internal quotations and citations omitted); ITT Corp. v. United States, 17 Cl. Ct. 199 , 240 (1989) (stating that “[f]ull compensation, then, requires that a [property owner] whose award has been delayed be compensated for his inability to utilize his money.”) In fashioning an award of just compensation, the appropriate inquiry is what has the owner lost, not what has the taker gained. Bos. Chamber of Com. v. City of Boston, 217 U.S. 189 , 195 (1910). The Prudent Investor Rule, a guideline to determine what landowners lost by not having the use of funds between the date of taking and the date of payment, calculates the appropriate interest rate “not on an assessment of how a particular plaintiff would have invested any recovery, but rather on how ‘a reasonably prudent person’ would have invested the funds to ‘produce a reasonable return while maintaining safety of principal.’” Tulare, 61 Fed. Cl. at 627 (quoting United States v. 429.59 Acres of Land, 612 F.2d 459 , 464-65 (9th Cir. 1980). As Plaintiffs argue, Moody’s rate “provides a consistent, reliable indicator of the rate of return that would be obtained by a ‘prudent investor’ given the economic circumstances prevailing during the time between when their property was taken and when the government finally pays them.” ECF No. 162 at 4 (citing Miller v. United States, 620 F.2d 712 (Ct. Cl. 1980); Pitcairn v. United States, 547 F.2d 1106 (Ct. Cl. 1976); Tektronic, Inc. v. United States, 575 F.2d 832 (Ct. Cl. 1978), cert. denied, 439 U.S. 1048 ; Ga. Pac. v. United States, 640 F.2d 328 (Ct. Cl. 1980)). “[T]his court has already recognized the Moody’s Index as ‘an indicator of broad trends and relative levels of investment yields or interest rates’ and as an instrument that ‘cover[s] the broadest segment of the interest rate spectrum.’” Sears v. United States, 124 Fed. Cl. 730 , 736 (2016) (quoting Pitcairn, 547 F.2d at 1124). Defendant contends that Moody’s rate would provide Plaintiffs an inappropriate windfall and urges the Court to apply the statutory interest rates in the Declaration of Takings Act (“DTA”), 40 U.S.C. § 3116. ECF No. 178 at 1. Defendant argues that the statutory rate set forth in the DTA applies in direct condemnations and that this same rate should be applied in inverse condemnation cases. There are, however, two critical distinctions between direct and inverse condemnation proceedings that make the DTA rate inadequate for Rails-to-Trails cases. First, in inverse condemnation situations, there is often a much longer time period between the taking of the landowner’s property and the payment of just compensation. See generally United States v. Clarke, 445 U.S. 253 , 257 (1980). In an inverse condemnation action, the landowner is “an involuntary lender to a debtor he would often prefer not to have,” and “the risk of any difference between the rates the government would normally pay, and those the condemnee could have 36 achieved by prudent participation in the broader market, should fall on the former.” Tulare, 61 Fed. Cl. at 630 (citing Redevelopment Agency v. Gilmore, 38 Cal. 3d 790 (1985) and Miller, 620 F.2d at 839). “The DTA, which was enacted to give the government ‘immediate possession’ of property while providing ‘immediate cash compensation’ to the former owner . . . does not contemplate such delays.” Tech. Coll. of the Low Country v. United States, 147 Fed. Cl. 364 , 369 (2020) (citing United States v. Miller, 317 U.S. 369 , 381 (1943)). It is during this intervening time that the landowner “faces a loss of liquidity foreign to the direct condemnation process.” Id. Second, “the DTA rate contemplates an award of just compensation from the perspective of the government’s cost of borrowing rather than the perspective of the claimant’s rate of return.” Id. (citing Tulare, 61 Fed. Cl. at 630) (internal quotation marks omitted); see Oral Arg. Tr. 37-38. But “[t]his [gain-to-the-Government] approach is improper -- in fact, just compensation requires the exact opposite” -- determining what the landowner has lost. Tech. Coll. of the Low Country, 147 Fed. Cl. at 369; see generally Sears, 124 Fed. Cl. at 734 n.3 (stating that the Declaration of Taking Act applies to condemnation cases and that its “provisions are not binding on other types of Fifth Amendment takings cases, such as the present rails-to-trails case.” (internal citations omitted)). The majority of recent Court of Federal Claims decisions have applied the Prudent Investor Rule and Moody’s rate in fashioning the proper interest rate necessary to achieve just compensation. See, e.g., Ideker Farms, Inc. v. United States, 151 Fed. Cl. 560 , 608-10 (Fed. Cl. 2020) (using the Prudent Investor Rule as a “guiding principle” and finding that Moody’s rate is the appropriate measure of interest); Tech. Coll. of the Low Country, 147 Fed. Cl. at 367-68 (finding that the Prudent Investor Rule applies and Moody’s rate properly measures damages); Hardy v. United States, 138 Fed. Cl. at 357; Love Terminal Partners v. United States, 126 Fed. Cl. 389 , 439 (2016), rev’d on other grounds, 889 F.3d 1331 (Fed. Cir. 2018); Sears, 124 Fed. Cl. at 736-37. The Prudent Investor Rule also promotes establishing a uniform rate of interest applicable to condemnation cases and avoids discrimination among litigants. Tech. Coll. of the Low Country, 147 Fed. Cl. at 367 (citing Miller, 620 F.2d at 838.). 23 Finally, Plaintiffs argue that just compensation requires annual compounding because Plaintiffs would have been able to earn compound interest if they had been paid at the time of the taking. While “compound interest ordinarily does not run against the government without its consent, this prohibition on [compound] interest against the government does not apply in fifth amendment takings cases.” Bowles v. United States, 31 Fed. Cl. 37 , 52 (1994) (citing Whitney Benefits, Inc. v. United States, 30 Fed. Cl. 411 , 414-15 (1994)). In cases with a long delay since the date of the taking, “the award of compound interest is 23 This Court recognizes that the DTA rate has been applied in a few recent inverse condemnation decisions. E.g. Liebman v. United States, 139 Fed. Cl. 653 , 664 (2018) (applying the DTA because “[n]either party provided an argument for the use of a particular interest rate”); Waverly View Invs., LLC v. United States, 136 Fed. Cl. 593 , 596-97 (2018); St. Bernard Parish Gov. v. United States, 126 Fed. Cl. 707 , 728 (2016), rev’d on other grounds, 887 F.3d 1354 (2018); Textainer Equip. Mgmt. Ltd v. United States, 99 Fed. Cl. 211 , 223 (2011) (applying the DTA rate because plaintiffs had presented no evidence supporting the application of Moody’s rate). However, this Court finds that Moody’s rate better achieves the goal of arriving at just compensation for landowners. 37 not only proper, but its denial would effectively undercut the protections of the fifth amendment to our Constitution.” Whitney Benefits, 30 Fed. Cl. at 415; see also Ideker Farms, 151 Fed. Cl. at 609 (compounding interest annually); Biery v. United States, Nos. 07-693L and 07-675L, 2012 WL 5914521 , at *4 (Fed. Cl. Nov. 27, 2012) (finding that compounding annually “may be necessary to accomplish completed justice under the Just Compensation Clause (internal quotation marks omitted)); Textainer Equip. Mgmt. Ltd. v. United States, No. 08-610C, 2014 WL 2938452 , at *3 (Fed. Cl. June 30, 2014) (applying Moody’s rate compounded annually). The delay in Plaintiffs’ compensation for the 2013 taking entitles these Plaintiffs to interest compounded annually. Conclusion The Court adopts the valuations of Plaintiffs’ expert, Mr. Hodge, with the reductions noted above, and awards just compensation as shown in the Table in Appendix I. Plaintiffs are entitled to interest representing delay damages between the date of the taking and the date of payment at an interest rate equivalent to the Moody’s rate, compounded annually. Accordingly, the Court GRANTS Plaintiffs’ motion for partial summary judgment and DENIES Defendant’s cross-motion. The parties shall file a joint status report by September 30, 2021, proposing the judgment that should be entered in this case pursuant to Rule 54(b). The parties shall specify how much of the proposed amount is attributable to delay damages, assuming the judgment will be paid on October 29, 2021. Additionally, the parties shall indicate the specific numerical interest rate that applies for future delay damages, if any, beyond October 29, 2021. s/Mary Ellen Coster Williams MARY ELLEN COSTER WILLIAMS Senior Judge 38  Appendix I Claim Full Name Land within Severance Total Award ID the Easement Damages to the Damages Remainder 140 Alcantara, David $3,967 $2,898 $6,865 168 Alcide, Sheylah $9,618.75 $4,774 $14,392.75 47 Carter, Gail W. $3,017 $1,761 $4,778 175 Castleberry, Lester $3,063 $3,422 $6,485 177 M. and Connie M. 123 City of Covington $8.899.60 $54,775 $63,674.60 141 City of Covington $10,120.50 $8,695 $18,815.50 34 City of Covington $47,073 $27,770 $74,842 35 City of Covington $21,175 $5,499 $26,674 55 City of Covington $3,620 $7,406 $11,025 7 Clark’s Grove, LLC $83,490 $64,293 $147,783 202 Crawford, William $2,360 $1,355 $3,715 R., III and Patricia E. 44 Dew, Robert C., Jr. $4,023 $7,586 $11,609 and Pamela M. 186 Dixon, Mary Jane $15,398 $73,944 $89,342 42 Faulkner, Robert L., $3,915 $8,053 $11,968 Jr. 36 First Baptist Church $22,380 $37,741 $60,121 38 of Covington 39  Appendix I Claim Full Name Land within Severance Total Award ID the Easement Damages to the Damages Remainder 37 First Baptist Church $18,076 $3,267 $21,343 of Covington 284 Fowler Newton $22,068 0 $22,068 Properties, LLC 152 Goss, Leonard, Jr. $7,481.25 $1,701 $9,182.25 61 Gossett Properties, $4,752 $2,483 $7,235 LLC 41 Greyland Real Estate $2,850 $1,930 $4,780 Investments 43 Greyland Real Estate $6,777 $4,547 $11,324 Investments 115 Guenther, Mark $3,300 $4,965 $8,265 Frederick 197 Hackett, Ricky Joe $945 $5,035 $5,980 and Phyllis S. 188 Hankins, Wendy M $3,379 $1,186 $4,565 and Robert L. 142 Hay, Sam B., Jr. and $12,781 $49,252 $62,033 Dearing, John J. 125 Henry, Reginald F. $16,910 $5,314 $22,224 and Yvonne I. 45 Hooten, Dennis R. $2,685 $1,413 $4,098 and Judy M. 88 Huguelet, Marcia A. $5,888 $3,354 $9,241 40  Appendix I Claim Full Name Land within Severance Total Award ID the Easement Damages to the Damages Remainder 184 Johnson, James W. $12,798 $15,810 $28,608 28 Jones, Bradford and $4,760 $1,765 $6,525 Robert 236 Jones, Catherine Ann $1,776 $1,204 $2,980 196 Karen James d/b/a $6,272 $4,588 $10,860 Windy Hill Tree Farm 287 Lockhart, Larry and $19,665 $5,787 $25,452 Collete B. 239 Lunsford, Perry $1,030 $1,395 $2,425 Charles 105 Marino, Joseph J. $18,703.60 $4,973 $23,676.60 135 Mastin, Willard $1,012 $1,900 $2,912 275 Mock, Ricky and $9,608 $72,885 $82,565 276 Nancy 277 216 Mock, W.D. Ballard $2,764 $2,936 $5,700 and Nancy 162 Munroe, Winston and $10,901.25 $3,414 $14,315.25 Patricia 210 Newton County $7,965 $11,646 $19,611 211 Board of Commissioners 124 Newton County $5,184 $13,010 $18,194 Board of Commissioners 276 Newton County $20,025 $24,307 $44,332 Board of Commissioners 41  Appendix I Full Name Land within Severance Total Award the Easement Damages to the Damages Remainder 182 Newton County $9,856 $30,848 $40,704 183 Board of Commissioners 187 Pickens, Betty Jean $15,613.20 $88,013 $103,626.20 280 Pulliam, Elaine H. $15,745 $5,651 $21,396 164 Rentrope, Jacinda M. $11,115 $3,386 $14,501 54 Restivo, John, III and $6,042 $4,051 $10,093 Marion 285 Robin Fowler $4,936 $981 $5,917 Properties 29 Robin Fowler $12,999 $7,188 $20,187 286 Properties 171 Semador, Isaac $11,649.85 $3,658 $15,307.85 155 Smith, A. Randall and $1,085 $940 $2,025 Katherine P. 132 Smith, Sherman E. $24,415 $4,396 $28,811 48 Stone, Edward Phillip $2,613 $5,141 $7,753 68 Tabb, Robert Y. and $6,413 $2,152 $8,564 Darcel K. 57 Thorpe, Jennifer H. $4,161 $11,713 $15,874 25 ULKAFAW $10,125 $14,288 $24,413 Corporation 42  Appendix I Claim Full Name Land within Severance Total Award ID the Easement Damages to the Damages Remainder 288 ULKAFAW $10,072 $25,184 $35,256 Corporation 193 Zenko, Robert M. $1,332 $2,663 $3,995 43

2021-09-01 13:03:25.799127+00

https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019cv0683-84-0

In the United States Court of Federal Claims No. 19-683 C (Filed: August 31, 2021) * * * * * * * * * * * * * * * * * * ** * RYAN P. SLAUGHTER, * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant, * * and * * SC JONES SERVICES, INC., * * Defendant-Intervenor. * * * * * * * * * * * * * * * * * * * *** Ryan P. Slaughter, pro se, of Roy, WA. Isaac B. Rosenberg, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, D.C., for defendant. Kathryn V. Flood, PilieroMazza PLLC, of Washington, D.C., for defendant-intervenor. OPINION AND ORDER SOMERS, Judge. On May 8, 2019, Plaintiff pro se Ryan P. Slaughter, doing business as Allied Synergy International (“ASI”), filed a complaint in this Court challenging the National Aeronautics and Space Administration’s (“NASA”) award of a contract in October 2018 to SC Jones Services, Inc. (“Defendant-Intervenor” or “SC Jones”), for grounds maintenance and pest control services at John F. Kennedy Space Center. ECF No. 1 (“Compl.”). 1 Plaintiff objects to NASA’s price 1 Plaintiff filed an amended complaint on May 17, 2019, that—for all relevant parts—largely restates his original grounds for objecting to NASA’s award of the contract to SC Jones. ECF No. 11 (“Amend. Compl.”). 1 evaluation methodology, namely its alleged use of “a different equation and formula which [NASA] did not specifically state in writing in the solicitation to evaluate for award.” Id. at 2. Plaintiff asserts that his “firm provided the [Lowest Price Technically Acceptable] bid with the equation the agency awarded to” and, for relief, “humbly request[s] an award of this contract” from the Court. Id. at 2-3. On June 27, 2019, Plaintiff filed a motion for judgment on the administrative record, ECF No. 28 (“Pl.’s MJAR”), to which the government filed a cross motion, ECF No. 31 (“Gov.’s Mot. to Dismiss/MJAR”). In addition, the government moved to dismiss the complaint pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims (“RCFC”). Gov.’s Mot. to Dismiss/MJAR. On January 4, 2021, the case was reassigned to the undersigned judge. The case has been thoroughly briefed, 2 and the Court provided multiple opportunities for the parties to state, argue, or further clarify their positions on the record. 3 For the reasons that follow, the Court has determined that Plaintiff fails to satisfy standing requirements under the Tucker Act to bring this bid protest. Accordingly, the Court lacks jurisdiction to consider the merits of Plaintiff’s complaint, and the government’s motion to dismiss is granted. BACKGROUND AND PROCEDURAL HISTORY A. The Solicitation On June 6, 2018, NASA issued a request for proposals (“RFP” or “solicitation”), via Solicitation No. 80KSC018R0014, for the award of a firm-fixed price contract (“KGPC II”) to provide grounds maintenance and pest control services at John F. Kennedy Space Center on Merritt Island, Florida. Gov.’s Mot. to Dismiss/MJAR at 2. SC Jones was the incumbent under the predecessor contract. Id. “The solicitation sought a contract consisting chiefly of two firm- fixed price contract line item numbers (CLINs) for regularly-scheduled grounds maintenance and pest control services . . . and a third, indefinite delivery/indefinite quantity (IDIQ) CLIN encompassing 16 irregular (but related) services to be ordered at fully-burdened, firm-fixed price rates.” Id. at 2-3 (citation omitted). It also included a firm-fixed price CLIN for phase-in activities. Id. at 3. The solicitation contemplated a contract of up to five years in length, consisting of a base year and four, one-year options, which NASA would award “on a Lowest Price Technically Acceptable [LPTA] basis.” Id. (quoting AR 123 (emphasis omitted)). The evaluation process consisted of NASA initially evaluating each offeror’s proposed price to determine which was the lowest, after which it would “evaluate the lowest priced proposal first” to determine whether it 2 Numerous other motions (including at least one largely duplicative non-motion that is designated as a motion) filed by Plaintiff remained pending on the docket at the time the case was transferred to the undersigned judge. See ECF No. 35, 54, 65, 72, 73, and 75. The Court thoroughly reviewed each and found no new information relevant to the issue of standing, which must be established before the Court can consider the merits of a case. 3 The docket reflects telephonic status conferences held on May 10, 2019, ECF No. 5, and on August 27, 2019, ECF No. 38, as well as telephonic oral argument on the motions held on September 23, 2019, ECF No. 52. 2 met technical acceptability. AR 123. If “the lowest priced proposal” was found to be “not technically acceptable,” NASA would evaluate “the second lowest priced proposal” for technical acceptability, and so on “until the lowest priced technically acceptable proposal [was] identified.” Id. For technical acceptability, the solicitation identified six factors NASA would assess: recent relevant experience, project manager experience, certifications/licenses, union labor experience, resources, and phase-in. AR 123-125. To be found technically acceptable, a proposal had to “meet” all six factors. AR 123. To determine a total evaluated price “for award purposes,” the solicitation provided that NASA would use the sum of each offeror’s “total price for the basic requirement,” “phase-in pricing,” and “total price for all options . . . .” AR 126. Such prices would be “determin[ed] . . . by multiplying the unit price” for each requirement by “the quantities specified for each year . . . .” Id. Moreover, the agency would evaluate price proposals for completeness and “any significant unbalanced pricing,” consistent with Federal Acquisition Regulation (“FAR”) § 15.404-1(g). Id. An offeror’s proposal could “be rejected if the Contracting Officer determines that pricing information is incomplete.” Id. The solicitation required each offeror’s price proposal to include two completed tables— Table B.1-1 and Table B.3-1—from “Section B” of the solicitation, as well as a completed price proposal template, labeled Attachment L-01. Gov.’s Mot. to Dismiss/MJAR at 4 (citing AR 122); see also AR 54-57, 382-83. It directed offerors to “complete Contract Line Item Pricing” in both tables and the price proposal template, AR 122, as well as to “reconcile” their pricing tables with the price proposal template, AR 54 (requiring that Table B.1-1 “be completed by the Offeror” and that it “should reconcile to attachment L-01”). See also AR 57 (requiring that Table B.3-1 “be completed by the offeror”); AR 122 (“Attachment L-01 . . . shall reconcile to Table B.1-1 and Table 3.1-1.”). Table B.1-1 consisted of seven pricing sub-tables requiring offerors to submit a fixed price for one month of phase-in activity and total annual fixed prices for “Grounds Mowing and Landscaping” (CLIN 0001 for “Base Period,” CLIN 1001 for “Option 1,” et seq.) and “Pest Control” (CLIN 0002 for “Base Period,” CLIN 1002 for “Option 1,” et seq.). AR 54-56. 4 It also required offerors to propose an annual “unit price” for the IDIQ CLINs for each year—base through Option 4. Id. For each year, the sub-tables included a notation that the annual “Amount” for each of the IDIQ CLINs was not-to-exceed $300,000 (“NTE $300,000”), reflecting an annual cap on NASA’s authority to order the 16 irregular services covered by those CLINs. Gov.’s Mot. to Dismiss/MJAR at 4-5; AR 54-56. Specifically, Table B.1-1 appears in the solicitation as follows (shown here with only the base period sub-table reflected, but the four sub-tables for the option periods are identical to that of the base period): 4 Each total “Amount” for grounds and pest control services was determined by the offeror providing a monthly “Unit Price,” which was multiplied by the offeror by twelve to arrive at an annual “price” for such CLINs. 3  PART I – SCHEDULE SECTION B – SUPPLIES OR SERVICES AND PRICE/COST B.1 Supplies or Services/Prices The Contractor shall provide all resources (except as may be expressly stated in the contract as furnished by the Government) necessary to perform the requirements set forth in the KSC Grounds and Pest Contract II (KGPC II) Performance Work Statement (PWS) incorporated as attachment J-01. Table B.1-1 Schedule of Services (To be completed by the Offeror, should reconcile to attachment L-01) Phase-In DESCRIPTION OF UNIT CLIN SUPPLIES or SERVICES QTY UNIT PRICE AMOUNT 0000 Phase-In Activities 1 Month Total for Phase-In Period (09/01/18 – 09/30/18) Base Period DESCRIPTION OF UNIT CLIN SUPPLIES or SERVICES QTY UNIT PRICE AMOUNT 0001 Grounds Mowing and 12 Month Landscaping 0002 Pest Control 12 Month 0003 ID/IQ – See Table B.3-1 1 Yr NTE $300,000 Total for Base Period (10/01/18 – 09/30/19) AR 54; see AR 55-56 for option periods. 4  Section B also required offerors to complete a “Summary” sub-table in Table B.1-1, providing a “Total for Phase-In, Base Period and Option 1 thru Option 4 and ID/IQ Schedule (All Years).” AR 56. The sub-table appears in the solicitation as follows: SUMMARY – Phase-In, Base Period and Option 1 thru Option 4 DESCRIPTION OF SUPPLIES UNIT CLIN or SERVICES QTY UNIT PRICE AMOUNT Phase-In Period 0 KGPC II Base Period 1 KGPC II Option Period 1 2 KGPC II Option Period 2 3 KGPC II Option Period 3 4 KGPC II Option Period 4 Total for Phase-In, Base Period and Option 1 thru Option 4 and ID/IQ Schedule (All Years) Id. Next, Table B.3-1 required offerors to specify firm-fixed unit prices (i.e., per acre, per tree, or per hour) for the various IDIQ services, with boxes for each performance period (“Base Period,” “Option 1,” et seq.). AR 57. The solicitation made clear that the IDIQ prices would “be used by the Government in ordering additional requirements as needed.” AR 56. Specifically, the table appears in the solicitation as follows: Table B.3-1 ID/IQ/FFP Rates (To be completed by the offeror) ID/IQ Base Option Option Option Option Services Reference Qty CLIN Period 1 2 3 4 Mowing Near Attachment J- $ $ $ $ $ 0003a Buildings 09.1 Acre Mowing Attachment J- $ $ $ $ $ Roadways and 09.2 0003b Open Fields Acre 5  Attachment J- $ $ $ $ $ Maintain/trim 01 Sect 2.6 & 0003c Tree – Small 4.1 Each Maintain/trim Attachment J- $ $ $ $ $ Tree – 01 Sect 2.6 & 0003d Medium 4.1 Each Attachment J- $ $ $ $ $ Maintain/trim 01 Sect 2.6 & 0003e Tree - Large 4.1 Each Tree Removal Attachment J- $ $ $ $ $ 0003f – Small 01 Sect 4.1 Each Tree Removal Attachment J- $ $ $ $ $ 0003g – Medium 01 Sect 4.1 Each Tree Removal Attachment J- $ $ $ $ $ 0003h – Large 01 Sect 4.1 Each Emergency Attachment J- $ $ $ $ $ 0003i Clean Up 01 Sect 4.5 Hour Fire Line Attachment J- $ $ $ $ $ 0003j Clearing 01 Sect 4.4 Acre Attachment J- $ $ $ $ $ 0003k Land Clearing 01 Sect 4.3 Acre Attachment J- $ $ $ $ $ 0003l Pest Control 01 Sect 4.6 Hour Pest Control – Attachment J- $ $ $ $ $ residual 01 Sect 4.6 003m Mosquito Acre Pest Control – Attachment J- $ $ $ $ $ Mosquito 01 Sect 4.6 003n Fogging Acre Attachment J- $ $ $ $ $ 003o Landscaping 01 Sect 2.3 Acre Repair and Attachment J- $ $ $ $ $ Replacement 01 Sect 4.2 003p of Grass Area Acre AR 57. Attachment L-01, the price proposal template, consisted of two Excel spreadsheets, requiring the offeror to provide discrete pricing information for each CLIN. AR Tab 31. In the first spreadsheet, for each firm-fixed price CLIN, offerors were required to separately list their proposed labor, material, and equipment pricing during each performance period. AR 382. It also required offerors to provide unit-level rates for each of the 16 IDIQ CLINs. Id. In the second spreadsheet, the agency included estimated “Frequency Per Year” information for each IDIQ service, which the spreadsheet then multiplied by the offeror’s proposed rates from the first spreadsheet to determine the price per service for each performance period, the “Total ID/IQ Price” for each IDIQ CLIN over the entire contract (base year and all options), and a sum “Total ID/IQ Evaluation Price.” Id. Using all of the offeror-supplied pricing information, the second spreadsheet calculated a sum of all firm-fixed price amounts for all performance periods, the 6 “Total ID/IQ Evaluation Price,” and the offeror’s “Phase-In” price to calculate the offeror’s “Total Evaluated Price (Base, Options, ID/IQ & Phase-in).” AR 383. The top of both spreadsheets stated, “PRICE TEMPLATE BELOW IS FOR EVALUATION PURPOSES ONLY,” and the bottom of each provided, “This price evaluation template must be completed and included in the proposal.” Id. Overall, the solicitation made clear the importance of offerors submitting complete proposals for consideration: L.15 Proposal Content Offerors are requested to provide information responsive to the items set forth in RFP section L and section M. This information is considered essential for the Government to conduct a fair and uniformed evaluation of proposals in accordance with the evaluation factors provided in section M. . . . Proposals will be evaluated on the completeness and quality of the information provided to demonstrate the offeror’s qualifications in terms of experience, capability, and proposed approaches to meet all of the requirements of the [Performance Work Statement]. AR 120. 5 B. Offers, Evaluation, and Award In response to the solicitation, NASA timely received four proposals by the July 18, 2018 deadline, including from Plaintiff, AR Tabs 39-50, and SC Jones, AR Tabs 51-55. See also Contracting Officer’s Statement of Facts at 5, 10 (AR 13, 18). In a document dated July 19, 2018, the Contracting Officer compiled an “Abstract of Offers,” indicating for each offeror whether the proposal was timely, whether the offeror qualified as a HUBZone small business, 6 whether the proposal complied with page limitations, and whether the proposal included the “Volume II Price Proposal Template.” AR Tab 56. The abstract also identified whether each offeror “Completed SF 1449 Schedule Table B.1-1 & Table B.3-1.” Id. Three of the four offerors, including the awardee SC Jones, were marked “Yes” for having “[c]ompleted” Tables B.1-1 and B.3-1 in their proposal; Plaintiff, however, was marked “No.” Id. Specifically, the abstract appears in the Administrative Record as follows: 5 Section M of the solicitation includes the “Evaluation Factors for Award,” including those for “Volume II – Price.” AR 126. 6 The solicitation limited proposals to qualifying historically underutilized business zone (“HUBZone”) small businesses. AR 115. 7  ABSTRACT OF OFFERS SOLICITATION NO. 80KSC018R0014 (KGPC II) Volume I Volume II Completed Timely HUBZone Reps & Certs Technical Price SF 1449 Total Name of Offeror 7/18/18 Small or SAM Capability Proposal Schedule Evaluated 4:30 PM Business Proposal Pages Template Table B.1-1 Price (NTE 20) & B.3-1 1 S C Jones Yes Yes Reps & Certs 19 Pages Yes Yes $10,048,182.00 2 Allied Synergy Yes Yes SAM 13 Pages Yes No $10,400,000.00 International 3 [Offeror 3] Yes Yes SAM 16 Pages Yes Yes [***] 4 [Offeror 4] Yes Yes Reps & Certs 21 Pages Yes Yes [***] Id. 7 The abstract ranked the offers from lowest to highest based on each offeror’s “Total Evaluated Price.” Id.; see also AR 747. Of the four offers, SC Jones is shown as the lowest bidder with a “Total Evaluated Price” of $10,048,182, and Plaintiff is shown as the second lowest bidder at $10,400,000. Id. 8 Next: After determining that S.C. Jones was the lowest total evaluated price for purposes of award and had submitted the required documentation, the Contracting Officer then forwarded S.C. Jones’ Volume I, Technical Capacity Proposal to the technical evaluators. During that time, the Contracting Officer also executed a Price Reasonableness memorandum having determined S.C. Jones’ price as fair and reasonable based on adequate price competition and the Government’s Independent Cost Estimate. AR 19 (citing AR Tab 60). On August 8, 2018, after SC Jones’ proposal had been found technically acceptable, the Contracting Officer “executed a Selection Statement having found S.C. Jones as the lowest priced technically acceptable offer and therefore eligible for award in accordance with RFP evaluation criteria.” Id.; see also AR Tab 62 (Source Selection Statement). Pre-award notifications were issued on August 13, 2018, to the unsuccessful offerors, including Plaintiff, and, on October 18, 2018, 9 the award notice was posted on the Federal Business Opportunities (“FBO”) webpage. Id. According to the Contracting Officer, For inclusion in this opinion, the table includes redactions that the Court deemed necessary (indicated by 7 “[***],” as well as generic identifiers for Offeror 3 and Offeror 4). The Court also notes that the table is included in landscape format in the record. See AR 746. To fit this opinion for publication, the cells are recreated here in portrait format, but all substantive information remains identical to the original source. 8 “The evaluated price for purposes of award did not include the ID/IQ NTE price as the NTE was not part of the evaluation criteria set forth in Section M or provided as a fill in cell on the L-01 Pricing Template.” AR 19 (Contracting Officer’s Statement of Facts at 11). 9 As explained in the Contracting Officer’s Statement of Facts: The Agency’s delay in announcing the award resulted from [Plaintiff’s] submission of a [HUBZone] size protest to the Small Business Administration (“SBA”) on August 15, 2018. The 8  [t]he FBO award notice contains a “contract award dollar amount” of $10,974,544; an amount different from awardee’s $10,048,182 total evaluated price for award purposes. Per NASA FAR Supplement (NFS) Subpart 1805-3, NASA is required to post for public announcement contract actions with an “anticipatory value” of greater than $7 million[.] For purposes of award announcement, “anticipatory value” is defined as the total maximum value under an indefinite quantities contract. This “anticipatory value” or “contract award amount” was arrived at by removing S.C. Jones’ ID/IQ evaluated price for purposes of award ($411,810) and adding back in $1.5 million ($300,000 NTE price per year time[s] five years (base year plus 4 one year options)) which is the maximum amount of ID/IQ that could be awarded under the contract. It is not the total evaluated price for purposes of award set in the RFP Section M evaluation criteria. AR 19-20 (citations omitted). C. GAO Protest and the Instant Case On October 22, 2018, Plaintiff filed a protest with the Government Accountability Office (“GAO”) challenging NASA’s award to SC Jones. AR 20. Before GAO, Plaintiff alleged that NASA violated the terms of the solicitation by using evaluated IDIQ CLIN prices for purposes of awarding the contract, as opposed to using $300,000 (which Plaintiff derives from the “NTE $300,000” IDIQ CLIN notation in Table B.1-1) for the annual IDIQ CLIN prices. Matter of: Ryan P. Slaughter DBA Allied Synergy Int’l, B-417036 (Jan. 16, 2019). In other words, Plaintiff objected to NASA’s use of evaluated IDIQ prices to award the contract, because the agency’s announcement of the contract award (and value) reflected the NTE amount instead. Plaintiff claimed he “would have had the lowest evaluated price, and should have received the award, if NASA had calculated offerors’ proposed prices correctly—which, according to [Plaintiff], meant using the $300,000 NTE figure as the price for all the IDIQ CLINs.” Gov.’s Mot. to Dismiss/MJAR at 12. Under that formula, Plaintiff’s price would be $10.75 million, compared to SC Jones’ price of $10.97 million. Matter of: Ryan P. Slaughter DBA Allied Synergy Int’l, B- 417036 (Jan. 16, 2019). Ultimately, GAO concluded that NASA’s “use of the estimated quantities specified in the RFP to calculate evaluated prices for IDIQ CLINs, rather than using the higher not-to-exceed limit, was required by the RFP,” and that Plaintiff “[had] not shown that the price evaluation used by NASA was unreasonable, or that it was prohibited by law or regulation.” Id. SBA denied the protest on September 19, 2018. On September 20, 2018, [Plaintiff] filed an appeal . . . . That appeal was denied on October 15, 2018. AR 19, n.3. 9  Plaintiff initiated the instant action on May 8, 2019, alleging essentially the same grounds for relief as his protest at GAO. See Pl.’s MJAR at 23 (“My firm provided the lowest price utilizing the same equation (Phase in + Grounds + Pest Control + IDIQ NTE $300,000) the agency awarded to my competitor from, but he received the award and I did not. That is just plain wrong.”). Plaintiff also articulates several other objections, including that NASA “incorrectly interpreted [48 C.F.R. § 15.101-2] to mean they could choose an awardee based on an evaluated equation and award to that contractor using a different equation,” id. at 5, that NASA “did not provide a coherent and reasonable explanation of its exercise of discretion,” id. at 8, that because “multiple contractors had difficulty submitting quotes on this procurement[,] [it is] obvious there was a significant error in the procurement process,” id. at 13 (emphasis omitted), that the solicitation contained “hidden figures” subject to “manipulations,” id. at 29, and that NASA may have “unlawfully engage[d] in communications, clarifications, and instruction to [SC Jones] about how to ‘correctly’ submit its bid schedule,” id. at 38, among other allegations of agency error. 10 In July 2019, the government responded with its motion to dismiss, cross-motion for judgment on the administrative record, and opposition to Plaintiff’s motion. The government’s motion argues for dismissal on the grounds that Plaintiff “lacks standing because his proposal was incomplete and noncompliant with the requirements stated in the solicitation.” Id. at 16. According to the government, the solicitation “required offerors to include several documents in their price proposals, including ‘Table B.1-1 and Table B.3-1,’” but “[Plaintiff] included neither.” Id. 11 In addition, the government asserted that the complaint should be dismissed based on the Federal Circuit’s holding regarding waiver in Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007). According to the government, Plaintiff “challenges various aspects of the solicitation and its contents that he either knew or should have known about before he submitted his proposal,” and “these protest grounds have been waived because [Plaintiff] failed to protest them sooner.” Id. at 17 . Finally, the government moved for judgment on the administrative record, arguing, inter alia, that NASA properly used evaluated prices to determine that SC Jones had the lowest-priced proposal, correctly did not use the “NTE $300,000” figure in determining evaluated prices, rationally chose to determine the lowest price proposal by considering “Total ID/IQ Evaluated Prices,” appropriately communicated with SC Jones, and that contract values may properly differ from evaluated prices. Id. at 23-39 . 12 10 On March 2, 2020, Plaintiff filed a “Renewed and Amended Motion for [Judgment] on the Administrative Record,” ECF No. 65, wherein he alleges an organizational conflict of interest (“OCI”) that should have prevented the award from ever being made to SC Jones in the first place. Plaintiff “requests a court order to terminate [SC Jones’] contract . . . and to award the contract to [Plaintiff] its rightful owner. This will effectively and efficiently mitigate and neutralize the OCI.” ECF No. 65 at 15. 11 The government’s standing argument further alleges that Plaintiff’s “technical proposal was also both noncompliant and incomplete,” in that Plaintiff “did not submit his technical proposal in a single volume but instead across several disjointed attachments,” and because it “did not address at least three of the technical factors . . . .” Gov.’s Mot. to Dismiss/MJAR at 17 (citations omitted). However, after a correction of the Administrative Record, the government withdrew “that part of our motion [to dismiss]” because Plaintiff had indeed “attached several files addressing those three technical evaluation factors” in a July 17, 2018 e-mail to the Contracting Officer. ECF No. 37 at 1 (citing AR Tab 39a at 626.1-.21). 10  DISCUSSION A. Legal Standard The Tucker Act provides the Court of Federal Claims with “jurisdiction to render judgment on an action by an interested party objecting to . . . the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1). In such actions, the Court “shall review the agency’s decision pursuant to the standards set forth in section 706 of title 5.” 28 U.S.C. § 1491(b)(4). Accordingly, the Court examines whether an agency’s action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .” 5 U.S.C. § 706. Under such review, an “award may be set aside if either: (1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 , 1332 (Fed. Cir. 2001) (citations omitted). On the first ground, “the courts have recognized that contracting officers are ‘entitled to exercise discretion upon a broad range of issues confronting them’ in the procurement process.” Id. (quoting Latecoere Int’l, Inc. v. United States Dep’t of Navy, 19 F.3d 1342 , 1356 (11th Cir. 1994)). Thus, the Court must “determine whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion, . . . and the disappointed bidder bears a heavy burden of showing that the award decision had no rational basis.” Id. at 1332-33 (citations and quotes omitted). On the second ground, “the disappointed bidder must show a clear and prejudicial violation of applicable statutes or regulations.” Id. at 1333 (citation and quote omitted). In addition, “[t]o prevail in a bid protest, a protester must show a significant, prejudicial error in the procurement process.” Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365 , 1367 (Fed. Cir. 1999). To establish prejudice, a plaintiff is “required to show that there was a ‘substantial chance’ it would have received the contract award but for the [agency’s] errors in the bid process.” Bannum, Inc. v. United States, 404 F.3d 1346 , 1358 (Fed. Cir. 2005) (citations omitted). However, before the Court can proceed to the merits of a bid protest, a protestor must first establish that it has standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555 , 561 (1992) (“[T]he party invoking federal jurisdiction bears the burden of establishing [the] elements [of standing]”); Castle v. United States, 301 F.3d 1328 , 1337 (Fed. Cir. 2002) (“Standing is a threshold jurisdictional issue, which . . . may be decided without addressing the merits of a determination.”). In bid protests, standing is framed by 28 U.S.C. § 1491(b)(1), which “imposes more stringent standing requirements than Article III” of the Constitution. Weeks Marine, Inc. v. 12 The government also argues that the Court should not grant Plaintiff’s motion for judgment on the administrative record, in part because Plaintiff “seeks two improper forms of relief”: an award of the contract and lost profits. Gov.’s Mot. to Dismiss/MJAR at 39. 11 United States, 575 F.3d 1352 , 1359 (Fed. Cir. 2009). Bid protest standing “is limited to actual or prospective bidders or offerors whose direct economic interest would be affected by the award of the contract or by the failure to award the contract.” Am. Fed’n of Gov’t Employees v. United States, 258 F.3d 1294 , 1302 (Fed. Cir. 2001). Accordingly, to proceed in a bid protest, a plaintiff “is required to establish that it ‘(1) is an actual or prospective bidder and (2) possess[es] the requisite direct economic interest.’” Weeks Marine, Inc., 575 F.3d at 1359 (quoting Rex Serv. Corp. v. United States, 448 F.3d 1305 , 1308 (Fed. Cir. 2006)). “To prove a direct economic interest as a putative prospective bidder, [the bidder] is required to establish that it had a ‘substantial chance’ of receiving the contract.” Rex Serv. Corp., 448 F.3d at 1308 ; see also Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312 , 1319 (Fed. Cir. 2003) (“To establish prejudice, [plaintiff] must show that there was a ‘substantial chance’ it would have received the contract award but for the alleged error in the procurement process.”). Relevant to the instant matter, plaintiffs proceeding pro se are entitled to a liberal construction of their pleadings. Haines v. Kerner, 404 U.S. 519 , 520 (1972) (requiring that allegations contained in a pro se complaint be held to “less stringent standards than formal pleadings drafted by lawyers”). Nevertheless, all plaintiffs still bear the burden of establishing subject matter jurisdiction by a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746 , 748 (Fed. Cir. 1988). B. Analysis Plaintiff has firmly established on the record his objections to NASA’s award of the contract to SC Jones. What Plaintiff has failed to establish, however, is standing in this Court to protest such award in the first place. First, as the government correctly identifies in its motion to dismiss, Plaintiff submitted an incomplete, and thus noncompliant, proposal in pursuit of the contract. Second, the requirements that Plaintiff failed to follow were material to the solicitation and the agency’s price analysis. Third, as Plaintiff failed to follow a material requirement of the solicitation, he has not shown that he stood a “substantial chance” of receiving the contract and, therefore, does not have standing. Accordingly, the Court does not proceed to consider the merits of Plaintiff’s objections and must dismiss his complaint for lack of subject matter jurisdiction. 1. Plaintiff’s Proposal Failed to Comply with the Solicitation’s Requirements The Court begins with a brief review of the unambiguous requirements of NASA’s solicitation. As already described above in detail, the solicitation expressly required offerors’ proposals to include two “completed” tables from Section B of the solicitation (Table B.1-1 and Table B.3-1) and a completed price proposal template (Attachment L-01). AR 54, 57. It directed offerors to “complete Contract Line Item Pricing” in both tables and the price proposal template, AR 122, as well as to “reconcile” their pricing tables with the price proposal template, AR 54. See also AR 122 (“Attachment L-01 . . . shall reconcile to Table B.1-1 and Table 3.1- 1.”). What is more, the solicitation expressly stated: “A cost/price volume that is suitable for 12 evaluation shall . . . (i) Complete Standard Form 1449 Schedule: Table B.1-1 and Table B.3-1.” AR 122 (emphasis added). Proceeding to review Plaintiff’s proposal for these required tables, the Court first notes that the Administrative Record reflects that Plaintiff completed the price proposal template, referenced as Attachment L-01. The Contracting Officer’s “Abstract of Offers” attests to the same. See AR Tab 56. But, as has been established above, Attachment L-01 was not the only pricing information expressly required by the terms of the solicitation. In her “Abstract of Offers,” dated July 19, 2018, the Contracting Officer identified that Plaintiff had not “Completed SF 1449 Schedule Table B.1-1 & B.3-1” in his proposal. Id. This failure to complete and provide the required information places Plaintiff’s proposal in stark contrast to those of the other three offerors competing for the solicitation—each of which, per the “Abstract of Offers,” completed the B.1-1 and B.3-1 requirement. See AR 678-681 (SC Jones), AR 1042-1044 (Offeror 3), AR 1112-1115 (Offeror 4). Not simply resting on the Contracting Officer’s word, the Court searched the record for Plaintiff’s missing price tables. 13 They indeed appear, but only belatedly and not as part of the Administrative Record, which compiled the materials that were before NASA when it made its procurement decision. Rather, the required tables appeared for the first time as attachments to Plaintiff’s August 2019 response and opposition in this Court to the government’s motion to dismiss. ECF No. 35 at Bates 66-69. In that same filing, Plaintiff admits and concedes his “failure to complete the bid schedule in B.1,” id. at 5, and represents to the Court that “[y]esterday, 8-19-19, I submitted documentation in which I filled out my B.1 table for the first time,” id. at 36 (emphasis added). The Court cannot ignore the obvious: Plaintiff failed to complete and timely submit the required pricing information with his proposal, a failure that he himself has admitted and conceded on the record in this proceeding. 2. The Solicitation’s Price Information Requirements Are Material The only question that remains is whether the express requirement to complete Tables B.1-1 and B.3-1 is material to the solicitation and, if so, how Plaintiff’s failure to satisfy this requirement bears on the issue of prejudice—an essential element of the Court’s standing inquiry. “[A] proposal that fails to conform to the material terms and conditions of the solicitation should be considered unacceptable and a contract award based on such an unacceptable proposal violates the procurement statutes and regulations.” E.W. Bliss Co. v. United States, 77 F.3d 445 , 448 (Fed. Cir. 1996) (citation omitted); see also Centech Grp., Inc. v. United States, 554 F.3d 1029 , 1037 (Fed. Cir. 2009) (“To be acceptable, a proposal must 13 On August 23, 2019, the government corrected the Administrative Record by filing attachments from an email from Plaintiff to the Contracting Officer sent July 17, 2018, the day before the solicitation’s deadline. See ECF No. 36-2. While the attachments—purporting to be Plaintiff’s original proposal—appear relevant to Plaintiff’s technical evaluation, they do not answer the question about his missing price tables. Moreover, the government makes clear that “our correction of the administrative record does not change our standing arguments. [Plaintiff’s] price proposal was still incomplete.” ECF No. 37 at 2. 13 represent an offer to provide the exact thing called for in the request for proposals, so that acceptance of the proposal will bind the contractor in accordance with the material terms and conditions of the request for proposals.”). To refresh, the solicitation specifically states that “[p]rice proposals will . . . be evaluated for completeness,” and “a proposal may be rejected if the Contracting Officer determines that pricing information is incomplete.” AR 126. Moreover, offerors’ pricing information was described within the solicitation as “essential for the Government to conduct a fair and uniformed evaluation of proposals in accordance with the evaluation factors provided in section M.” AR 120 (emphasis added). The Court will not read out of the solicitation the agency’s own determination that the B.1-1 and B.3-1 price information—which, again, was “to be completed by the offeror”—is “essential” for proposal evaluation purposes. There is no ambiguity here. The solicitation expressly demands completed pricing tables from offerors; therefore, the Court must give the language its clear effect. See CW Gov’t Travel, Inc. v. United States, No. 21-1354 C, 2021 WL 3085500 , at *6 (Fed. Cl. June 28, 2021) (“The Court’s interpretation of a solicitation’s terms begins with the plain language of the document . . . which ‘must be given that meaning that would be derived from the [solicitation] by a reasonably intelligent person acquainted with the contemporaneous circumstances’”) (quoting Metric Constructors, Inc. v. NASA, 169 F.3d 747 , 752 (Fed. Cir. 1999)) (internal citation omitted). The “essential” and material nature of the Table B.1-1 and Table B.3-1 price information, as reconciled to Attachment L-01, is also evidenced by the agency’s “Price Reasonableness Determination,” dated July 23, 2018. AR Tab 60. Therein, the Contracting Officer presents a “Comparison with Independent Government Estimate (IGE)” of SC Jones’ price proposal, using a year-by-year measure of variance and concluding that SC Jones’ “prices are reasonable.” Id. Table B.1-1 of the solicitation in particular—one of the tables of which Plaintiff admits he did not complete—appears to be the very framework by which the agency determines the baseline year-by-year prices from each offeror, with sub-tables dedicated to the “Base Period” and each successive option period. See AR 54-56. Moreover, the agency’s “Price Reasonableness Determination” specifically reinforces that the agency’s “requirement for the IDIQ items is NTE $300,000 per year,” which “was stated on the proposal Section B, Table B.1-1 Schedule of Services.” AR 752 (emphasis added). In sum, the record points only to a conclusion that completed price information in Tables B.1-1 and B.3-1 is a material requirement of the solicitation. In so holding, the Court does not tread new ground. In ManTech Advanced Sys. Int’l, Inc. v. United States, the Court outlined numerous instances in which it “has determined . . . that proposals with missing mandatory price information contain material errors, even when the price information has a minimal impact [on] the total price, so long as the needed prices will be considered in the evaluation process and binding on the offeror.” 141 Fed. Cl. 493 , 512 (2019) (emphasis added). In the instant case, the Court need not chart its own course to weigh the importance of the requested price information; the agency itself makes it abundantly clear: “A cost/price volume that is suitable for evaluation shall . . . (i) Complete Standard Form 1449 Schedule: Table B.1-1 and Table B.3-1.” AR 122 14 (emphases added). 14 Because Plaintiff entirely failed to complete the pricing tables that would have rendered his proposal “suitable for evaluation,” the Court cannot find that Plaintiff stood a “substantial chance” of receiving the contract. 15 Accordingly, Plaintiff fails to establish standing in this Court and his complaint must be dismissed.16 CONCLUSION For the foregoing reasons, Plaintiff fails to establish that he has standing to bring the instant protest. Accordingly, the case is hereby DISMISSED for lack of subject matter jurisdiction. The Clerk shall enter judgment accordingly. IT IS SO ORDERED. s/ Zachary N. Somers ZACHARY N. SOMERS Judge 14 For good measure, consider an alternate hypothetical. Had Plaintiff been awarded the contract, it is reasonable to assume that one (if not more) of the other three offerors would challenge the award as arbitrary and capricious, as Plaintiff was the only offeror who submitted a proposal not “suitable for evaluation” on its face. For Plaintiff to prevail in this hypothetical scenario, the Court would have to disregard the solicitation’s clear and express requirements, even though all other offerors complied with them. Such an outcome would hardly engender public confidence in the procurement process. See CW Gov't Travel, Inc. v. United States, No. 21-1354 C, 2021 WL 3085500 , at *25 (Fed. Cl. June 28, 2021) (“It is paramount that GSA—as with any agency—abide by the terms of its RFQ and the FAR in order to maintain public confidence in the procurement process.”). 15 The Court notes that Plaintiff has not himself articulated a clear argument for standing, nor directly responded in his numerous briefings to the government’s arguments as to the missing price information and its impact on standing. When standing is mentioned, Plaintiff quickly proceeds instead to the merits of his protest. See ECF No. 35 at 15-17. Nevertheless, consistent with the Court’s duty to grant pro se plaintiffs a liberal construction of their pleadings, the Court endeavored to find anything in the record that might salvage Plaintiff’s standing in the instant matter—notwithstanding that the burden to demonstrate standing rests on Plaintiff alone. Even still, the Court came up empty in its search. 16 To the extent that Plaintiff’s allegations can be construed as objecting to the very tables that he failed to complete, such objections could have—or, more accurately should have—formed the basis for a pre-award rather than post-award bid protest. See, e.g., Amend. Compl. at 8 (Plaintiff alleging it is “unreasonable and incoherent when an offeror cannot read the solicitation and easily calculate their own bids due to the overwhelming number of contradictions, circular statements, and lack of quantities and units in the summary table of the bid schedule and lack of annual sum totals for the other tables B.1 and B.3. . . .”); ECF No. 17 at 1 (Plaintiff alleging “there was a substantial chance that our firm would have received the award if there were not serious problems with the solicitation.”). Plaintiff’s first protest regarding the instant solicitation did not occur until October 22, 2018, days after NASA publicly announced its award decision. While the Court finds dismissal necessitated on standing alone, the government is correct that “a party who has the opportunity to object to the terms of a government solicitation containing a patent error and fails to do so prior to the close of the bidding process waives its ability to raise the same objection subsequently in a bid protest action in the Court of Federal Claims.” Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 , 1313 (Fed. Cir. 2007). As Plaintiff did not file any pre-award protest with the agency, GAO, or in this Court, he generally cannot now seek relief for alleged errors, “contradictions, circular statements,” or other errors in the solicitation—unless they became apparent only after the award decision was made. 15

2020-12-01 13:06:07.625288+00

https://www.mass.gov/files/documents/2020/11/30/h12030.pdf

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; [email protected] SJC-12030 COMMONWEALTH vs. LEEANNE CHESKO. Worcester. February 14, 2020. - November 30, 2020. Present: Gants, C.J., Lenk, Budd, Cypher, & Kafker, JJ. 1 Homicide. Felony-Murder Rule. Robbery. Cellular Telephone. Evidence, Medical record, Privileged record, Communication between patient and psychotherapist, State of mind, Hearsay, Inference. Practice, Criminal, Instructions to jury, Assistance of counsel, Capital case. Indictment found and returned in the Superior Court Department on September 23, 2011. The case was tried before Richard T. Tucker, J. Richard L. Goldman for the defendant. Nathaniel R. Beaudoin, Assistant District Attorney, for the Commonwealth. CYPHER, J. A jury convicted the defendant, LeeAnne Chesko, of murder in the first degree on the theory of felony-murder, 1 Chief Justice Gants participated in the deliberation on this case prior to his death.  2 with armed robbery as the predicate felony, after the victim, Francis P. Spokis, was found dead in his home. 2 The defendant argues on appeal that the judge's failure to instruct on felony- murder in the second degree, the admission of the defendant's cell site location information (CSLI), and the judge's instruction on inferences each resulted in a substantial likelihood of a miscarriage of justice. She further argues that it was prejudicial error for the judge to fail to admit a medical report in evidence and for the judge to restrict the defendant's cross-examination of a witness. The defendant also maintains that trial counsel provided ineffective assistance. In addition, she urges this court to exercise its authority under G. L. c. 278, § 33E, to reduce her verdict or order a new trial. We affirm the defendant's conviction. After a thorough review of the record, we also decline to exercise our authority under G. L. c. 278, § 33E. Background. We summarize the facts that the jury could have found at trial, reserving certain details for our discussion of the legal issues. 1. Commonwealth's evidence. Sometime around June to July 2011, the defendant and her boyfriend, James Rutherford, came up 2 Indictments charging the defendant with armed robbery, home invasion, and aggravated assault and battery by means of a dangerous weapon were nol prossed before jury empanelment.  3 with a plan to rob the victim, who lived in Rutland.3 The victim and the defendant had an ongoing relationship, in which he provided the defendant with drugs or money in exchange for sexual favors. In the spring of 2011, the victim sold a parcel of land located behind an auto body shop that he owned on Franklin Street in Worcester, for $300,000. The sale was published in a local newspaper. Testimony showed that the defendant and Rutherford planned to rob the victim in early July while his wife and child were away on vacation. They had to abandon their first attempt, only to return two days later to carry out the robbery. At the time, Rutherford lived in Worcester, and his former roommate, Rody Zapata, who testified under a cooperation agreement with the Commonwealth, presented the details of the first attempt at the robbery. On multiple occasions during June and July 2011, Rutherford described a robbery plan to Zapata. 4 The defendant took part in three or four of these conversations. 3 James Rutherford was convicted in a separate trial of murder in the first degree on the theories of deliberate premeditation and felony-murder, and his conviction was affirmed on appeal. Commonwealth v. Rutherford, 476 Mass. 639 , 640 (2017). 4 This testimony was bolstered by the testimony of two acquaintances of the defendant. One testified that on July 1, 2011, the defendant asked him to help her commit a robbery with Rutherford, and the other testified that about ten days before the murder, the defendant told him that she knew someone with a lot of money whom she wanted to rob.  4 She knew the person who would be robbed, but did not want that person to know she was involved. Zapata was not told who the victim was going to be, but was told that the victim owned a business on Franklin Street in Worcester and that he had money. The plan was for the defendant to get high with the victim. She would leave a door to the house open and notify Rutherford and Zapata when to enter. Rutherford and Zapata would tie up the victim and the defendant to make it seem that the defendant was not involved in the robbery, and then they would drive the victim to his auto body shop, which they would rob. On July 4, 2011, Zapata, the defendant, and Rutherford headed to the victim's home at around 11 A.M. to commit the robbery. After the defendant was not able to reach the victim on his cellular telephone (cell phone), they drove to Rutherford's mother's house to borrow her cell phone. 5 The three then drove to the victim's house. Rutherford parked the car on the side of the road and got out of the car to check out the house. Zapata testified that while he and the defendant were alone in the car, she told him that if the victim discovered that she was involved in the crime, they would have to "get rid 5 On July 4, 2011, there were multiple calls during the time frame of the planned robbery from the defendant's cell phone to the victim's cell phone. The Commonwealth presented CSLI of these cell phone calls. The Commonwealth also presented evidence that a call was placed from Rutherford's mother's cell phone to the victim's cell phone on July 4, 2011, at 2:52 P.M.  5 of him; kill him." Rutherford returned to the car, and the three drove to return Rutherford's mother's cell phone. The three then drove back to the victim's house, and Rutherford parked the car in a nearby parking area. Zapata and Rutherford got out of the car, but Zapata angered the defendant when he no longer wanted to participate because Rutherford "started pulling out knives." The defendant and Rutherford did not go forward with their plan at that time. On or about July 5, 2011, Rutherford visited his friend, Luz Hernandez, at her apartment in Worcester. He asked her if he could use the storage unit on her back porch for the purpose of storing stolen items from a robbery he planned to commit. He told Hernandez that he planned to commit the robbery the following day while the victim's family was away on vacation and that a friend might help him commit the crime. Hernandez gave Rutherford a key to the storage unit. Zapata testified that a "couple days after" July 4, 2011, Rutherford told him that he committed the robbery and "offed" the victim. Evidence at trial supported that the victim's murder occurred between July 5 and July 6, 2011. On July 5, 2011, Rutherford first went to his mother's house in the afternoon to borrow duct tape, and he returned that evening with the defendant. At around 10 P.M. on July 5, 2011, surveillance  6 video from a convenience store in Holden showed the defendant and Rutherford drive into the store's parking lot. The video showed the defendant leave the car and walk toward where the pay telephone was located on the property, and then return to the car. Evidence showed that the victim's cell phone received three calls from the store's pay telephone at around 10 P.M. Hernandez testified that on the afternoon of July 6, 2011, Rutherford called her from the defendant's cell phone to tell her that he was at her apartment. Hernandez returned to her apartment and saw the defendant sitting in the front passenger's seat of a car while Rutherford brought items from the car to Hernandez's storage unit. In the subsequent days, Rutherford brought items to Hernandez's home, including a television stolen from the victim that Hernandez had agreed to purchase for $500. On the afternoon of July 10, 2011, the victim's wife and child returned home from vacation. The victim's wife had not spoken to the victim during her vacation. When she arrived home, she observed multiple days of mail in the mailbox, four days of newspapers on the ground in the driveway, missing items, and reddish-brown stains on the kitchen floor. She contacted the police. Included among the noticed missing items was a television, a video game system, a computer, and jewelry. The victim's gun safe was open, and there was blood in front of the safe. In the kitchen, officers observed the words "don't do  7 drugs" written in black marker on the tablecloth and on the countertop and they found a "black Sharpie pen" and cap on the kitchen floor. Blood stains were found in various rooms of the house, and bloody footprints led down the basement stairs. The victim was discovered, dead, at the bottom of the basement stairs. On the floor near the victim, officers found a comforter with blood stains on it and pieces of duct tape. The medical examiner testified that the victim suffered multiple stab wounds, abrasions, and lacerations, and a skull fracture. He further testified that the victim's principal cause of death was blood loss. The Commonwealth presented testimony that red-brown footprints observed throughout the victim's home were made by women's size seven Converse shoes and men's size eleven Viking boots, consistent with shoes that were worn by the defendant and by Rutherford, respectively. When searching Hernandez's apartment, police discovered multiple items that matched items stolen from the victim's house, including two televisions, a video game console, rifles, and various personal items. Inside Hernandez's storage unit, officers found firearms, ammunition, items of clothing, and a pair of men's size eleven Viking boots and a pair of women's size seven Converse sneakers. When police took Rutherford into custody on July 13, 2011, officers found keys that opened the  8 lock on Hernandez's storage unit, and an ammunition canister with what appeared to be bloody palm prints in Rutherford's car. Deoxyribonucleic acid on the ammunition canister matched the victim. The Commonwealth also presented telephone call records and CSLI evidence. The records showed that although between July 1 and July 6, 2011, the defendant's cell phone was used to call the victim's cell phone multiple times each day, there were no calls to the victim's cell phone after July 6, 2011. The defendant's cell phone account was terminated on July 10, 2011. The CSLI for the defendant's cell phone showed, in part, that on July 4 and July 5, 2011, her cell phone moved from Worcester to Holden and back to Worcester on both days. 2. Defendant's evidence. The defendant called expert Dr. Roger Gray to testify about Zapata's mental health. Gray reviewed Zapata's medical evaluation dated October 1, 2011, opining that the information in the record was consistent with the diagnosis of schizoaffective disorder. Through the testimony of a forensic document examiner, the defendant also sought to demonstrate that she did not write "don't do drugs" in the victim's home. 6 6 The defendant also introduced testimony from a police officer that on the night of June 29, 2011, the officer encountered Rutherford during a periodic check of a parking lot. A patfrisk of Rutherford turned up a pellet gun, black gloves,  9 Discussion. 1. Felony-murder instruction. The defendant argues that the judge erred by failing to instruct the jury on felony-murder in the second degree based on the predicate felony of armed assault with intent to rob, which carries a maximum sentence of twenty years in prison. See G. L. c. 265, § 18 (b). She was not charged with armed assault with intent to rob. The defendant contends that the lack of instruction on felony-murder in the second degree resulted in a substantial likelihood of a miscarriage of justice. The Commonwealth counters that the defendant did not request such an instruction and agreed at trial with the judge that the instruction was not needed, and argues that no rational view of the evidence supported an instruction on armed assault with intent to rob. We conclude that the judge did not err in not providing an instruction on felony-murder in the second degree and therefore no substantial likelihood of a miscarriage of justice occurred. As an initial matter, when discussing whether to provide an instruction on felony-murder in the second degree during the final charge conference, the judge stated that he did not think the instruction applied at all, and the defendant agreed. The judge next stated, "I couldn't even come up with what the underlying felony would be that was distinct and separate from and a "large knife." Rutherford had the defendant's pocketbook in his possession, but the defendant was not present.  10 the actions . . . that resulted in the death of [the victim]." The defendant did not disagree. "[W]here the felony later advanced by a defendant as the predicate for an instruction on felony-murder in the second degree is not itself the subject of a separate indictment, no error occurs if the trial judge does not charge the jury on it even though there may be sufficient evidence supporting such a charge -- at least where, as here, no party requested such an instruction or even brought the issue to the judge's attention at trial." Commonwealth v. Stokes, 460 Mass. 311 , 315 (2011). Moreover, the judge properly instructed the jury on felony- murder where "any rational view of the evidence pointed to the charged crime of armed robbery, and not the lesser crime of armed assault with intent to rob." Commonwealth v. Benitez, 464 Mass. 686 , 693-694 (2013). Although, as the defendant argues, there was evidence presented through Zapata's testimony that the initial, and unaccomplished, plan was to bring the victim to his shop in order to rob the safe there, "[w]hat matters is whether the actual evidence in the case reasonably would support a jury finding that the lesser predicate felony had been proved, and not the greater." Id. at 694 n.12. See Commonwealth v. Holley, 478 Mass. 508 , 528 (2017) (at time of defendant's trial, "an instruction on felony-murder in the second degree [was]  11 necessary when there [was] a rational basis in the evidence to warrant the instruction" [quotations and citation omitted]). To prove the crime of armed robbery in a joint venture, the Commonwealth must prove that the defendant or a coventurer, or both, "(1) was or were armed with a dangerous weapon; (2) either applied actual force or violence to the body of the person identified in the indictment, or by words or gestures put him in fear; (3) took the money or the property of another; and (4) did so with the intent (or sharing the intent) to steal it." Benitez, 464 Mass. at 690. To prove the crime of armed assault with intent to rob in a joint venture, the Commonwealth must prove that the defendant or a coventurer, or both, while armed with a dangerous weapon, "assault[ed] a person with a specific or actual intent to rob the person assaulted" (citation omitted). Id. at 694 n.12. See G. L. c. 265, § 18 (b). In the present case, "[n]o reasonable juror would view [the] evidence as supporting a charge of armed assault with intent to rob rather than armed robbery." Benitez, supra at 694. The medical examiner testified that the victim's principal cause of death was blood loss and that he suffered multiple stab wounds and other injuries. The injuries suffered by the victim, along with Zapata's testimony that Rutherford planned to use knives during the July 4, 2011, attempt, satisfy the first two elements of armed robbery. Id. at 690. The evidence that  12 multiple items were removed from the victim's home and found by police at Hernandez's home and in Rutherford's car satisfied the third element of armed robbery. Id. The testimony of Hernandez that Rutherford gave her the television stolen from the victim in exchange for her promise to pay $500 and that she observed Rutherford moving the stolen items to her home from his car, coupled with Zapata's testimony that he, Rutherford, and the defendant planned to split the robbery proceeds three ways, satisfied the fourth element of armed robbery. Id. If the jury did not believe that the defendant had committed the predicate felony of armed robbery, "they would have found the defendant not guilty; they could not have rationally concluded that [she] was guilty only of armed assault with intent to rob." Id. at 694-695. Therefore, the judge did not err by not providing, sua sponte, an instruction on felony- murder in the second degree, and there was no substantial likelihood of a miscarriage of justice. See Commonwealth v. Silva, 482 Mass. 275 , 288 (2019). 7 Moreover, because there 7 In addition, the jury's questions regarding felony-murder did not, as the defendant argues, further demonstrate that the judge should have instructed on felony-murder in the second degree. The judge provided a sufficient answer to the jury's question. The jury asked (1) whether the second element of felony-murder could be met without the defendant being proved to actually cause the harm, and (2) for clarification on the second element because the instructions did not clearly explain what "knowingly participate" meant. The judge answered in writing: (1) "The force and violence necessary is sufficient if it causes  13 was no substantial likelihood of a miscarriage of justice, the defendant's claim of ineffective assistance of counsel on this issue also is unsuccessful. See id. at 288 n.16. 2. Admission of defendant's historical CSLI records. The defendant next contends that trial counsel was ineffective for failing to challenge the admission of her historical CSLI 8 and that its admission resulted in a substantial likelihood of a miscarriage of justice. We agree with the Commonwealth that even if the CSLI should not have been admitted, it was cumulative of other evidence admitted at trial, and therefore, the admission did not result in a substantial likelihood of a miscarriage of justice. 9 The defendant accordingly also cannot prevail on her claim of ineffective assistance of counsel. victim to be separated from his property" and (2) "'Knowingly participate' is used in its common meaning, as further refined by the instruction on joint venture." 8 "[CSLI] 'refers to a cellular telephone service record or records that contain information identifying the base station towers and sectors that receive transmissions from a [cellular] telephone.'" Commonwealth v. Fulgiam, 477 Mass. 20 , 26 n.9, cert. denied, 138 S. Ct. 330 (2017), quoting Commonwealth v. Estabrook, 472 Mass. 852 , 853 n.2 (2015). 9 Because we conclude that the admission of the CSLI did not result in a substantial likelihood of a miscarriage of justice, we need not determine whether, as the defendant argues, the Commonwealth's application for the CSLI failed to meet both the reasonable grounds standard of 18 U.S.C. § 2703 (d) and the probable cause standard set forth in Commonwealth v. Augustine, 467 Mass. 230 , 255 (2014), S.C. 470 Mass. 837 and 472 Mass. 448 (2015) (Augustine I), which was decided seven months before the defendant's case was tried. See 18 U.S.C. § 2703 (d) (government  14 In the days following the murder of the victim, the Commonwealth obtained the defendant's CSLI from June 10, 2011, to July 14, 2011, pursuant to 18 U.S.C. § 2703 (d). The defendant's CSLI then was introduced at trial. To prevail on her claim that trial counsel provided ineffective assistance by failing to challenge the CSLI, the defendant must demonstrate that a challenge would have been successful and that the failure to bring the challenge resulted in a substantial likelihood of a miscarriage of justice. Commonwealth v. Fulgiam, 477 Mass. 20 , 29, cert. denied, 138 S. Ct. 330 (2017) (we focus on "whether there was error and, if so, whether any such error was likely to have influenced the jury's conclusion" [quotations and citation omitted]). 10 is required to provide "specific and articulable facts showing that there are reasonable grounds to believe that the [data] sought, are relevant and material to an ongoing criminal investigation"); Fulgiam, supra at 27 (in Augustine I, "we concluded that government-compelled production of CSLI by cellular telephone service providers was a search in the constitutional sense, requiring a warrant under art. 14 of the Massachusetts Declaration of Rights," but that Augustine I standard applies only to past records requests if "the defendant raised the warrant issue before or during the trial and the defendant's conviction was not final at the time that Augustine I was decided"). 10The defendant specifically asserts that the testimony concerning the CSLI from July 2, 4, 5, and 6, 2011, prejudiced her, in part because the Commonwealth referred to the CSLI from these dates in closing argument.  15 Although the CSLI from July 4, 2011, showed the defendant's cell phone moving from Worcester to Holden and back to Worcester, other evidence also showed that the three were together and in the vicinity of the victim's home in Rutland on that day: Zapata's testimony; Rutherford's mother, who lived in and was in Rutland at the time, testified that Rutherford borrowed her cell phone that day at some point between 1 P.M. and 2 P.M. and did not return it until after 5 P.M; Rutherford's mother's cell phone was used to place a call to the victim at 2:52 P.M.; and Rutherford's stepfather testified that he observed Zapata lying down on the back seat of Rutherford's car when the three were trying to get his mother's cell phone. And to the extent that the CSLI from July 5, 2011, also showed the defendant moving from Worcester to Holden and back to Worcester, and showed her cell phone in the vicinity of the convenience store near the time that calls were placed from the store's pay telephone, the surveillance video and the call record of the convenience store's pay telephone also showed this. In addition, the jury had other evidence before them regarding the defendant's involvement in the victim's murder, including the relationship between the defendant and victim and the knowledge she gained from the relationship; Zapata's testimony about the plan; the defendant's telling two other acquaintances that she planned to rob someone; and that the  16 bloody footprints matched the shoes that were worn by the defendant. 3. Denial of motion to admit privileged psychiatric records. The defendant next argues that the judge abused his discretion in denying the defendant's motion to admit a two-page psychiatric report on Zapata, resulting in prejudicial error. We conclude that the judge was within his discretion in denying the defendant's motion. "All communications between a licensed psychologist and the individuals with whom the psychologist engages in the practice of psychology are confidential." G. L. c. 112, § 129A. See G. L. c. 233, § 20B. To gain initial access to a privileged document, counsel must first meet particular requirements. See Commonwealth v. Dwyer, 448 Mass. 122 , 147-149 (2006) (Appendix) (describing protocols); Commonwealth v. Lampron, 441 Mass. 265 , 268 (2004). Insofar as relevant here, a party must first file a motion for the documents under Mass. R. Crim. P. 17 (a) (2), 378 Mass. 885 (1979), and a hearing is held to determine whether the requested documents are presumptively privileged. See Mass. G. Evid. § 1108 (2020). Before any final pretrial conference, the defendant must then file a motion in limine in order to be able to use the presumptively privileged documents at trial. See Dwyer, supra at 150; Mass. G. Evid. § 1108(g). We review a judge's evidentiary ruling for an abuse of  17 discretion. See Commonwealth v. Andre, 484 Mass. 403 , 414 (2020). The defendant here filed a motion before trial under the Dwyer protocol, requesting to be provided with Zapata's records from June 1, 2011, to August 30, 2011. The motion was granted, and the judge noted that the records presumptively were privileged. The defendant did not file a pretrial motion in limine to use the subject records at trial. See Dwyer, 448 Mass. at 150. During Zapata's trial testimony, the defendant orally moved to admit Zapata's psychiatric records in evidence, and the judge denied the motion. 11 The judge stated in his memorandum of decision that he denied the motion because the records presumptively were privileged; the defendant did not comply with Dwyer protocols; the opinion contained in the record should have been presented through the medical provider who created the document; and it was improper to allow the medical provider's expert opinion to be before the jury in written form without the Commonwealth having an opportunity to cross-examine her. The judge further explained that the defendant had received the benefit of the Lampron-Dwyer protocol and the "functional equivalent of the 11After the jury began deliberating, the defendant filed a motion for reconsideration of the judge's refusal to admit Zapata's medical records, which the judge also denied.  18 record's admission as an exhibit" because the defendant had had access to and use of the records; she was granted permission to have her expert review the records to formulate his assessment of Zapata, and Zapata himself had testified to "much of the report's content"; and he would remain on the witness stand for the remainder of his cross-examination by the defendant. In addition, Zapata testified on direct and cross-examination regarding the content of the records, and the defendant's expert witness opined that based on the records he had reviewed, he agreed with the author that the defendant had schizoaffective disorder. The judge acted within his discretion to deny the defendant's motion. We also conclude that counsel's failure to move pretrial to admit the report did not, as the defendant argues, result in ineffective assistance of counsel. See Commonwealth v. Lee, 483 Mass. 531 , 544 (2019). The judge did not deny the defendant's motion solely on the basis of counsel's failure to follow Dwyer protocols. Instead, the judge also stated in his decision that the medical provider's opinion should have been presented through the testimony of that medical provider. And as explained supra, the defendant received the "functional equivalent of the record's admission." 4. Testimony of Hernandez. The defendant next argues that during the defendant's cross-examination of Hernandez, the judge  19 should have allowed in evidence statements that Rutherford made to Hernandez about his relationship with the defendant to rebut the Commonwealth's theory that the defendant and Rutherford were close. 12 We agree with the Commonwealth that the judge correctly prohibited the defendant from eliciting this testimony as hearsay. The defendant argued that she was not offering the statements for their truth, but rather to show Rutherford's state of mind. The Commonwealth argued that the statements were hearsay not falling within any exception and that it was not arguing that a joint venture was established because of the close relationship between the defendant and Rutherford. The judge did not err in excluding the statements because, to the extent that the statements were relevant, Mass. G. Evid. § 401 (2020), they were not being offered for a nonhearsay purpose, Mass. G. Evid. § 801(c)(2), (d)(2)(E), and they did not fall within the state of mind exception to hearsay, Mass. G. Evid. § 803(3). Therefore, there was no prejudicial error. 5. Instruction on use of inferences. The defendant next argues that the judge failed to provide the jury with a clear 12The statements the defendant sought to introduce included that Hernandez observed the defendant and Rutherford arguing, that Rutherford needed someone to help pay the rent and that that is why he and the defendant lived together, and that Rutherford did not want to be with the defendant but was doing the right thing because she was pregnant with his child.  20 instruction on the use of inferences. In particular, she argues that the judge erred by failing to instruct that a "conviction should not be based upon the piling of inferences." We agree with the Commonwealth that the judge gave a proper jury instruction. The judge instructed the jury, in part: "The word 'infer,' or the expression, 'to draw an inference,' means to find that a fact exists based on the proof of another fact or set of facts. . . . An inference may be drawn, however, only if it is reasonable and logical, and not if it is speculative. . . . In deciding whether to draw an inference, you must look at and consider all of the facts in the case in the light of reason, common sense, and your own life experience." The judge also provided two scenarios from an example of everyday life to illustrate the concept. 13 When instructing the jury on joint venture, the judge stated, in part: "The inferences you draw must be reasonable, and you may rely on your experience and common sense in determining the defendant's knowledge and intent." The judge further instructed that the Commonwealth bore the burden of proving the defendant's guilt beyond a reasonable doubt. The defendant did not object to the lack of an instruction on the piling of inferences, and we 13The scenarios were: (1) if puddles are seen on the ground in the morning, it can be inferred rain fell during the night, even though the day is bright and clear, but (2) an inference may be drawn only if it is reasonable and logical, and not speculative, so if the puddles are only on your street and not on other streets in your neighborhood, a broken water main or sprinkler may explain the water.  21 therefore review for whether, if there was error, the error created a substantial likelihood of a miscarriage of justice. Although the instructions do not track with precision the Criminal Model Jury Instructions for Use in the District Court (2009) (model instructions), they provided an "adequate and clear instruction[] on the applicable law," Commonwealth v. Roberts, 378 Mass. 116 , 130 (1979), S.C., 423 Mass. 17 (1996), and neither the model instructions nor the supplemental instructions contain language about the piling of inferences. See Instruction 3.100 of the Criminal Model Jury Instructions for Use in the District Court. See also Commonwealth v. Alleyne, 474 Mass. 771 , 785 (2016) (as long as legal concepts were properly explained in jury instruction, judge need not use particular words); Instruction 2.240 of the Criminal Model Jury Instructions for Use in the District Court. Moreover, the cases cited as support by the defendant, see Commonwealth v. Gonzalez, 475 Mass. 396 , 407 (2016); Commonwealth v. Mandile, 403 Mass. 93 , 94 (1988), do not require that the suggested language be included in a jury instruction. Gonzalez and Mandile both state that a conviction may not rest upon "the piling of inference upon inference or conjecture and speculation," but in both cases the court was addressing the sufficiency of the evidence, not the proper jury instruction. See Gonzalez, supra at 407; Mandile, supra at 94 . In addition, the example that the  22 judge used to illustrate the concept of inferences, see note 13, supra, did not "permit the drawing of remote or speculative inferences from assumed facts [or] the piling of inference upon inference." See Commonwealth v. Gonzalez, 28 Mass. App. Ct. 906 , 907 (1989). See also Silva, 482 Mass. at 290, quoting Commonwealth v. Shea, 398 Mass. 264 , 271 (1986) ("The use of an illustration to explain an inference in connection with the concept of circumstantial evidence is permissible"). Therefore, the judge did not err in instructing the jury on the use of inferences and no substantial likelihood of a miscarriage of justice occurred. See Commonwealth v. AdonSoto, 475 Mass. 497 , 510-511 (2016). 6. Review under G. L. c. 278, § 33E. After a thorough review of the record, we do not find reason to exercise our authority under G. L. c. 278, § 33E, to reduce the defendant's verdict or order a new trial. The defendant focuses her § 33E argument on the judge's felony-murder instruction and Commonwealth v. Brown, 477 Mass. 805 , 823 (2017), cert. denied, 139 S. Ct. 54 (2018), arguing that the judge's instruction on felony-murder combined with the jury's questions cast doubt on the justice of the verdict. She further argues that the defendant's conviction "rests on two pillars rejected in Brown: (1) vicarious criminal liability for acts committed by joint venturers; and (2) imposition of a conclusive  23 presumption of malice from the intent to commit an inherently dangerous predicate felony." See id. at 829 (Gants, C.J., concurring). We concluded supra that the judge did not err in instructing the jury on felony-murder and that he provided adequate answers to the jury's questions. In addition, as recognized by the defendant, the holding in Brown was prospective. Id. at 834 (Gants, C.J., concurring). See Commonwealth v. Martin, 484 Mass. 634 , 645 (2020). Therefore, we decline to exercise our authority under § 33E to reduce the defendant's verdict or order a new trial. So ordered.

2020-12-01 13:06:08.139657+00

https://www.mass.gov/files/documents/2020/11/30/h17P0446.pdf

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; [email protected] 17-P-446 Appeals Court COMMONWEALTH vs. DERRICK SCOTT. No. 17-P-446. Suffolk. April 9, 2019. - November 30, 2020. Present: Green, C.J., Sullivan, & Ditkoff, JJ. Rape. Kidnapping. Consent. Deoxyribonucleic Acid. Appeals Court, Appeal from order of single justice. Jury and Jurors. Constitutional Law, Jury, Admissions and confessions, Voluntariness of statement, Assistance of counsel. Evidence, Admissions and confessions, Voluntariness of statement. Practice, Criminal, Jury and jurors, Empanelment of jury, Examination of jurors, Challenge to jurors, Instructions to jury, Lesser included offense, Motion to suppress, Admissions and confessions, Voluntariness of statement, Redaction, Assistance of counsel, Amendment of indictment or complaint. Indictments found and returned in the Superior Court Department on October 13, 2011. A pretrial motion to suppress evidence was heard by Shannon Frison, J., and the cases were tried before Mitchell H. Kaplan, J. A postconviction motion to compel access to juror questionnaires was heard by Singh, J., in the Appeals Court. Alan Edward Zeltserman for the defendant. Dara Z. Kesselheim, Assistant District Attorney (Amy Martin  2 Zacharias, Assistant District Attorney, also present) for the Commonwealth. DITKOFF, J. The defendant, Derrick Scott, appeals after a Superior Court jury trial from convictions of rape, G. L. c. 265, § 22 (b), and kidnapping, G. L. c. 265, § 26. He also appeals from an order of a single justice of this court denying his postconviction motion to compel the clerk of the Superior Court to provide him with access to juror questionnaires. We conclude that a party to a criminal case may be granted access to juror questionnaires, upon such conditions to preserve their confidentiality that a judge in an exercise of discretion considers prudent, if that party demonstrates that the juror questionnaires would be useful or relevant to postconviction litigation. Having reviewed the juror questionnaires and determined that they are not useful or relevant, we affirm the order of the single justice. Regarding the defendant's claims of error by the Superior Court judges, we conclude that the trial judge acted within his discretion in allowing the Commonwealth's peremptory challenges. We conclude that the defendant was not entitled to an instruction on the lesser included offenses of indecent assault and battery or simple assault and battery where both the defendant and the victim stated that the defendant penetrated the victim's vagina, and we reject the defendant's contention  3 that he was entitled to an instruction on withdrawal of consent because the victim asked him to wear a condom before raping her. We conclude that the judge who heard the defendant's motion to suppress properly concluded that the defendant voluntarily made statements and waived his Miranda rights even where the police did not inform the defendant why he was under arrest. We discern no substantial risk of a miscarriage of justice from the admission of the defendant's recorded police interview where all redactions requested by the defendant at trial were made. Finally, we conclude that a defendant does not have a right to have counsel appointed in connection with a prearraignment motion to amend indictments. Accordingly, we affirm the judgments. 1. Background. In October 1996, the victim was a twenty- one year old senior at Boston University. She was living in an apartment in the Brighton section of Boston with a college friend. One day, the defendant knocked on the victim's door and stated that he was selling magazines for school. The defendant and the victim started talking, and the victim invited the defendant inside her apartment. The defendant said that his name was Derrick and that he was from Georgia. The victim's roommate was not home at the time. After approximately an hour, the defendant said, "[I]f I ask you something do you promise to say yes?" The victim said,  4 "[N]o, I don't promise." The defendant then tried to kiss the victim, who pushed him away and told him that it was time for him to go. The defendant put his arm around the victim's neck, dragged her into her roommate's bedroom, and placed her on the bed. The defendant pinned the victim's hands over her head and pulled down her shorts. She begged the defendant to "please stop," but he continued. The victim then asked him if he had a condom and told him that she had one in her purse. When the defendant got off the victim to retrieve the condom, she grabbed her roommate's phone. The defendant took the phone from the victim and threw it before she could use the phone to summon help. The defendant then used one hand to pin the victim's arms and the other to place his fingers inside her vagina. The victim asked the defendant "to please stop" and told him that "it really hurt." The defendant did not stop, and pulled down his pants and "started to rub his penis up and down inside of [her] vagina, the lips of [her] vagina, up and down really, really hard." The victim again begged the defendant "to please stop," and told him that she could not breathe. The defendant stated that he would let the victim breathe if she "would have sex with him." As the defendant placed his penis inside the  5 victim's vagina, the victim said, "[P]lease stop, please stop, why are you going this to me, you're hurting me." The defendant ejaculated inside the victim and on the sheets. He then "rubbed his penis up and down kind of inside of the lips of [the victim's] vagina, hard, a few more times." Finally, he stopped and put his pants back on. The defendant said, "I guess you're going to call the police now," then said, "[H]ave a nice day" and left. The victim spoke with the police and was transported to a hospital by ambulance. There, a nurse collected samples from the victim's vaginal and genital areas. Semen was detected on the genital swabs, but not the vaginal swabs. In 2000, the Boston Police crime laboratory created a deoxyribonucleic acid (DNA) profile from semen on the genital swabs and submitted the profile to a national database in an attempt to identify the perpetrator. In 2011, the defendant's DNA profile was entered into the database after an unrelated arrest. In April 2014, based on a match in DNA profiles from the national database, 1 Boston police obtained an arrest warrant for the defendant, who was living in California. Local police officers executed the warrant at their request. Two Boston detectives interviewed the defendant in California. 1 The jury did not hear about either the previous arrest or the match from the database.  6 The detectives began the recorded interview by advising the defendant of his Miranda rights. The defendant stated that he grew up in Georgia and initially denied ever being in New England or selling magazines. The defendant continued denying ever having been in Boston after the detectives told the defendant that his DNA matched a 1996 rape kit from that city. The defendant, however, described the victim of that crime as a "young woman" and a "white girl." The detectives pointed out that they had not provided this information. Eventually, the defendant acknowledged having what he described as consensual sex with a "college-age" "[w]hite girl" he met while selling magazines in Boston. The defendant stated that his penis was inside that woman's vagina for "maybe two pumps." He stated that the woman became angry when he left after having sex. After his arrest, the police obtained an oral swab from the defendant. His DNA profile was a statistical match to the semen taken from the victim in 1996 with a vanishingly small random match probability. 2. Peremptory challenges. When challenging the propriety of a peremptory challenge, "the burden is on the objecting party to make a prima facie showing of impropriety that overcomes the presumption of regularity afforded to peremptory challenges." Commonwealth v. Rosa-Roman, 485 Mass. 617 , 635 (2020), quoting Commonwealth v. Robertson, 480 Mass. 383 , 390-  7 391 (2018). "If the judge finds that the presumption has been rebutted, the burden shifts to the prosecutor to articulate a nondiscriminatory or 'group-neutral' reason for the challenge." Commonwealth v. Mason, 485 Mass. 520 , 530 (2020), quoting Commonwealth v. Oberle, 476 Mass. 539 , 545 (2017). "Finally, the 'judge must then determine whether the explanation is both "adequate" and "genuine."'" Commonwealth v. Sanchez, 485 Mass. 491 , 493 (2020), quoting Oberle, supra. "We review a judge's decision as to whether to allow a peremptory challenge for an abuse of discretion." Mason, supra. a. Prospective juror no. 21. After five jurors had been seated, the Commonwealth used a peremptory challenge on a juror whom the judge described as the second African-American man to be examined.2 The juror had not filled out the portion of the juror questionnaire that asked about prior involvement with the court system. When asked by the prosecutor, the juror disclosed that he had been arrested in the same county where the trial was being held for domestic violence. When the prosecutor asked the juror whether he believed he had been falsely accused, he stated, "I can't say that," but then stated that he and his partner had merely "argued." 2 The first African-American man was excused for cause because his father was a police officer and he stated that he would find the testimony of a police officer more credible than that of a civilian witness.  8 The prosecutor sought to exercise a peremptory challenge to exclude this juror, the defendant objected, and the judge asked the prosecutor for the reason for the challenge. The prosecutor explained that the basis for the challenge was the prior arrest, the juror's failure to fill out the questionnaire fully, and his failure to "answer the question of whether he believed he was falsely accused about it." The judge accepted this explanation and excused the juror. The defendant objected but did not question the prosecutor's explanation. The judge acted within his discretion in allowing this peremptory challenge. A "prosecutor's concern regarding, essentially, the ability of the juror to follow simple instructions," such as to disclose prior involvement with the court system, is a legitimate one. Commonwealth v. Rodriguez, 457 Mass. 461 , 473 (2010). Similarly, the prosecutor could reasonably be concerned with the juror's equivocal answer regarding whether he had been treated fairly by her own office. In this regard, the prosecutor had already used a peremptory challenge on a female juror who had been similarly ambivalent about the treatment of her best friend's brother by the same prosecutor's office 3 and had questioned another female juror 3 When the prosecutor asked that juror whether the brother was treated fairly, she replied, "I mean, I guess I had my own opinions, but yes, he was given a fair trial, I guess."  9 about her opinion of the treatment afforded her father and brother in a prosecution by the same office. 4 The prosecutor was not required to adopt the defendant's view, expressed for the first time on appeal, that the juror's explanation was in fact candid. 5 b. Prospective juror no. 35. After eight jurors had been seated, the defendant objected to the prosecutor's next peremptory challenge of an African-American man. This prospective juror had worked for the Committee for Public Counsel Services for four years and then as a defense attorney. He stated that he had "defended folks [for] many worse crimes" than armed robbery with a firearm, of which the juror had been a victim. He had known defendant's counsel for more than fifteen years and had been tried by the same prosecuting office in the past, when, he stated, he was "falsely accused of motor vehicle insurance fraud." He went to trial and the case was eventually 4 That juror unequivocally stated that her relatives were treated fairly, and the prosecutor did not exercise a peremptory challenge. 5 Similarly, the judge did not err in failing to consider that -- hours later -- both parties would choose not to challenge an already seated non-African-American juror for whom a criminal record check had revealed nondisclosed juvenile charges and a nondisclosed charge of operating under the influence. The judge is not required to be clairvoyant, and the parties may well have different standards for exercising peremptory challenges that would involve reopening the empanelment process.  10 resolved by a continuance without a finding. When the defendant objected to the prosecutor's peremptory challenge, the judge immediately cut in and said, "[T]he fact is that [the juror] was a criminal defense lawyer. That's a reasonable basis on which to exercise a peremptory challenge." As the Supreme Judicial Court has recently clarified, "the presumption of propriety [of a peremptory challenge] is rebutted when 'the totality of the relevant facts gives rise to an inference of discriminatory purpose.'" Sanchez, 485 Mass. at 511, quoting Johnson v. California, 545 U.S. 162 , 168 (2005). We consider a number of factors: "(1) the number and percentage of group members who have been excluded from jury service due to the exercise of a peremptory challenge; "(2) any evidence of disparate questioning or investigation of prospective jurors; "(3) any similarities and differences between excluded jurors and those, not members of the protected group, who have not been challenged (for example, age, educational level, occupation, or previous interactions with the criminal justice system); "(4) whether the defendant or the victim are members of the same protected group; and "(5) the composition of the seated jury." (Footnotes omitted.) Sanchez, supra at 512. Furthermore, "the possibility of an objective group-neutral explanation for the strike or strikes . . . may play a role in the first-step  11 analysis as well." Robertson, 480 Mass. at 392, quoting Commonwealth v. Jones, 477 Mass. 307 , 322 & n.25 (2017). Here, our information on the race of the prospective jurors is quite limited. At this point in the empanelment process, one non-African-American man, six women of unknown (to us) race, and one man of unknown (to us) race had been seated. The prosecutor had used peremptory challenges only on juror no. 21 and a female juror. The prosecutor, however, had challenged both of the jurors who, like juror no. 35, expressed skepticism about the fairness of the criminal justice system. 6 Only one juror with a criminal record had been seated, and that juror had reported only a disorderly conduct charge in college that had been dismissed. In light of this, the judge faced with a peremptory challenge of a long-time defense attorney with a criminal record who believed that he had been wrongly prosecuted by the same prosecuting office could reasonably determine that "the totality of the relevant facts" gave rise to no "inference of discriminatory purpose." Sanchez, 485 Mass. at 511, quoting Johnson, 545 U.S. at 168 . This case is similar to Commonwealth v. Lopes, 478 Mass. 593 (2018). There, the Supreme Judicial Court affirmed the trial judge's determination that the presumption of propriety 6 Another juror who opined that he had been treated unfairly by the criminal justice system had been excused for cause.  12 had not been overcome where a juror's "two significant experiences with the law provided a sufficient and obvious basis for the prosecutor's peremptory challenge." Id. at 601. Contrast Robertson, 480 Mass. at 393 (judge should have inquired about prosecutor's reasons for peremptory challenge where "[t]he record offers little insight into what potential neutral reason the Commonwealth might have offered"). 7 The judge acted within his discretion. 3. Access to juror questionnaires. Each prospective juror is required to fill out a confidential juror questionnaire prior to empanelment. G. L. c. 234A, § 22. See Commonwealth v. Espinal, 482 Mass. 190 , 195 (2019). "The information elicited by the questionnaire shall be such information as is ordinarily raised in voir dire examination of jurors, including the juror's name, sex, age, residence, marital status, number and ages of children, education level, occupation, employment address, spouse's occupation, spouse's employment address, previous service as a juror, present or past involvement as a party to civil or criminal litigation, relationship to a police or law enforcement officer, and such other information as the jury commissioner deems appropriate." G. L. c. 234A, § 22. Accord Commonwealth v. Lopes, 440 Mass. 731 , 735 (2004). 8 Copies of the completed questionnaires are 7 To be sure, the better practice is for a judge to pretermit the first step and move directly to requesting an explanation for a peremptory challenge from the prosecutor. See Sanchez, 485 Mass. at 514; Lopes, 478 Mass. at 598. 8 On a case-by-case basis, the standard juror questionnaire may be supplemented by additional questions. See, e.g.,  13 provided to counsel and the judge during empanelment where, of course, they are invaluable tools for the empanelment process. G. L. c. 234A, § 23. See, e.g., Commonwealth v. Rios, 96 Mass. App. Ct. 463 , 467 (2019). At the completion of empanelment, counsel must return their copies to the clerk and hold in confidence the information contained therein. G. L. c. 234A, § 23. The questionnaires of those who are not selected are destroyed; the questionnaires of those who are selected (either as deliberating or alternate jurors) are retained by the clerk of court "until final disposition of the case," which should include the direct appeal. G. L. c. 234A, § 23. "Except for disclosures made during voir dire or unless the court orders otherwise, the information inserted by jurors in the questionnaire shall be held in confidence by the court, the clerk or assistant clerk, the parties, trial counsel, and their authorized agents." G. L. c. 234A, § 23. Accordingly, after empanelment is completed, the clerk may not provide the parties with access to the questionnaires absent a court order. Juror questionnaires can provide vital information for postconviction litigation. For example, a claim based on a juror's omissions of information from a questionnaire might be impossible to adjudicate without access to the questionnaire in Commonwealth v. Billingslea, 484 Mass. 606 , 627 (2020); Commonwealth v. Gilman, 89 Mass. App. Ct. 752 , 762 (2016).  14 question. See, e.g., Commonwealth v. Torres, 437 Mass. 460 , 468-469 (2002); Commonwealth v. Gonsalves, 96 Mass. App. Ct. 29 , 30-31 (2019). A claim of ineffective assistance of counsel based on counsel's failure to exercise a peremptory challenge could require the information on a questionnaire. See Commonwealth v. Ortiz, 50 Mass. App. Ct. 304 , 309 (2000). Even where access to a juror questionnaire is not critical, it may be helpful or otherwise relevant. For example, a claim of juror bias might be assisted by the information in the questionnaires. See, e.g., Commonwealth v. Richardson, 469 Mass. 248 , 255 & n.13 (2014). Where a party justifies a challenged peremptory challenge on the basis of a potential juror's answers on the questionnaire, access to that questionnaire could be quite useful. See, e.g., Robertson, 480 Mass. at 395 & n.9; Commonwealth v. Maldonado, 55 Mass. App. Ct. 450 , 457 & n.2 (2002), S.C., 439 Mass. 460 (2003); Commonwealth v. Cavotta, 48 Mass. App. Ct. 636 , 638-639 & n.3 (2000). Similarly, in that circumstance, access to the other questionnaires could be useful for comparison purposes. Cf. Trustees of Health & Hosps. of Boston, Inc. v. Massachusetts Comm'n Against Discrimination, 449 Mass. 675 , 684-685 (2007) (discussing comparator evidence). Where a party wants access to a juror questionnaire and can demonstrate that such access could potentially assist in  15 litigating a viable postconviction issue, a judge should grant some form of access while remaining cognizant of the vital importance of the confidentiality of juror questionnaires. See Commonwealth v. Womack, 457 Mass. 268 , 279 & n.11 (2010) (confidentiality of questionnaires vital to jurors' confidence); Commonwealth v. Howard, 46 Mass. App. Ct. 366 , 368- 369 (1999) (same). Potential assistance is a relatively low bar. The judge may structure an order, however, to preserve that confidentiality to the extent practical, for example, by impounding the questionnaire so that it will be placed only in an impounded appendix. Where the usefulness of a questionnaire is uncertain, a judge may choose to have counsel first view the questionnaire in camera, returning to request a copy only if the questionnaire proves significant. Here, the defendant moved for access to all of the juror questionnaires in Superior Court after the entry of his appeal in this court, but he neither filed a timely notice of appeal from the order denying the motion for access, nor argues in his brief to this court that this denial was error. 9 Accordingly, 9 The defendant filed a notice of appeal from the denial of his motion for access 364 days after the motion was denied. He then specifically asked the clerk not to assemble the record for appeal. The defendant confirmed at oral argument that this was a strategic decision.  16 the propriety of that denial is not before us. See Commonwealth v. Frias, 53 Mass. App. Ct. 488 , 495 (2002). Instead, after unsuccessfully challenging the denial in a petition under G. L. c. 211, § 3, see Scott v. Commonwealth, 479 Mass. 1034 (2018), the defendant filed a motion with a single justice of this court to compel the Superior Court clerk to provide him with access to the juror questionnaires, or, in the alternative, to determine "that said questionnaires are part of the record on appeal that should be provided to" the defendant. It is from the single justice's order denying this motion that the defendant timely noticed an appeal. "It is well settled that this court will not reverse an order of a single justice in the absence of an abuse of discretion or clear error of law." Howard v. Boston Water & Sewer Comm'n, 96 Mass. App. Ct. 119 , 123 (2019), quoting Commonwealth v. Springfield Terminal Ry. Co., 77 Mass. App. Ct. 225 , 229 (2010). The single justice, however, lacked the authority to decide the defendant's appeal of the Superior Court judge's order denying the defendant's motion for access to the questionnaires. See DeLucia v. Kfoury, 93 Mass. App. Ct. 166 , 168 (2018). That question had to be presented to a panel of this court by a proper notice of appeal and briefing. The defendant's alternative claim for relief, that "the instant request for access to jury questionnaires should be  17 sufficient in itself to establish the right of [the defendant] to access the questionnaires as he seeks to perfect the direct appeal of his criminal conviction," is not persuasive. The mere fact that a document is part of the record on appeal, see Mass. R. A. P. 8 (a), as amended, 378 Mass. 932 (1979) ("The original papers and exhibits on file, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court shall constitute the record on appeal in all cases"); 10 Maldonado, 55 Mass. App. Ct. at 457 n.2, does not necessarily mean that any party is entitled to unfettered access, or indeed any access, to it. When, for example, a judge conducts an in camera hearing on a witness's invocation of the privilege against self-incrimination pursuant to Commonwealth v. Martin, 423 Mass. 496 , 504-505 (1996), the transcript of that hearing is a part of the record on appeal and is reviewed by the appellate court but is not accessible to the parties under any circumstances. See Pixley v. Commonwealth, 453 Mass. 827 , 834- 835 (2009); Commonwealth v. Pixley, 77 Mass. App. Ct. 624 , 628 (2010). As we have stated, whether a party is entitled to access to the juror questionnaires is a question for the trial 10The Massachusetts Rules of Appellate Procedure were wholly revised, effective March 1, 2019. See Reporter's Notes to Rule 1, Mass. Ann. Laws Court Rules, Rules of Appellate Procedure, at 466 (LexisNexis 2019). The analysis would be the same under the current version of Mass. R. A. P. 8 (a), as appearing in 481 Mass. 1611 (2019).  18 court judge upon a showing that such questionnaires would potentially be useful or relevant in litigating a postconviction matter, and the defendant did not appeal from the judge's ruling in this regard. Accordingly, the single justice properly denied the defendant's motion. Even though the defendant has waived his right to review of these issues in this appeal, we are cognizant that the juror questionnaires are, in fact, relevant to the defendant's issue concerning the peremptory challenges, which involve, among other things, a juror's failure to answer a question on the questionnaire. Although juror no. 21's questionnaire has been destroyed (because he was not seated), whether any other seated jurors failed to answer a question or otherwise displayed similar nonracial characteristics as the struck jurors in their questionnaires is important information. Accordingly, as we have done in the past when a question concerning the use of peremptory challenges on the basis of race has been raised, we ordered the questionnaires from the trial court and have reviewed them carefully. See Maldonado, 55 Mass. App. Ct. at 457 & n.2. None of the seated jurors failed to answer a question on the questionnaire. None of the seated jurors described any experience as a defense attorney or in a related job. Regarding criminal records, one juror reported being charged with  19 disorderly conduct in college, but the judge read that information into the record. Three other jurors described a criminal history of a relative or partner, but again the judge read that information into the record. One juror stated that a distant relative had served time for draft resistance in World War II. This information was not read into the record, but it is not helpful to the defendant. Accordingly, nothing in the juror questionnaires calls into question our conclusions regarding the peremptory challenges. 4. Instruction on lesser included offenses. At trial, the defendant requested the judge to instruct the jury on two lesser included offenses of rape, indecent assault and battery, and simple assault and battery. The trial judge declined, reasoning that no view of the evidence supported either instruction. "A lesser included offense instruction should be given where 'the evidence at trial presents "a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense."'" Rios, 96 Mass. App. Ct. at 476, quoting Commonwealth v. Donlan, 436 Mass. 329 , 335 (2002). In deciding whether a lesser included offense instruction is appropriate, "we draw all reasonable inferences from the evidence in favor" of the defense. Commonwealth v. Dyous, 436 Mass. 719 , 731 (2002). Nonetheless, "even when evidence is introduced that would justify conviction for a lesser included  20 offense, the defendant is not entitled to an instruction thereupon unless the proof on the 'elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense.'" Donlan, supra, quoting Commonwealth v. Souza, 428 Mass. 478 , 494 (1998). Here, the victim unambiguously testified that the defendant penetrated her vagina, both digitally and with his penis. The defendant likewise unambiguously stated that there was penetration; he told the police that his penis "was in the vagina." Although the defendant focuses on the victim's testimony that she saw the defendant ejaculate and that he "rubbed his penis up and down kind of inside the lips of [her] vagina," that testimony casts no doubt upon this element. It is well settled that "[i]ntrusion into the vagina itself is not required to make out the wrongful penetration. Touching by the male of the vulva or labia . . . is intrusion enough." Donlan, 436 Mass. at 336, quoting Commonwealth v. Baldwin, 24 Mass. App. Ct. 200 , 204-205 (1987). 11 Although the jury had the right to disbelieve any portion of the evidence, and could have selectively disbelieved portions 11For this reason, the defendant's statement in closing argument that "the penis didn't go into the vagina here" is a non sequitur, if it was intended as a remark on the element of penetration.  21 of the victim's testimony, "the mere possibility that the jury might not credit a portion of the Commonwealth's evidence" is not enough to entitle the defendant to an instruction on a lesser included offense. Donlan, 436 Mass. at 337. Where the case was tried on the question whether the victim consented to the penetration and not whether it occurred, no rational jury could have convicted the defendant of the lesser included offenses while acquitting him of rape. 5. Instruction on withdrawal of consent. In Commonwealth v. Sherman, 481 Mass. 464 , 472-473 (2019), the Supreme Judicial Court held that, where a victim consents to sexual penetration but withdraws consent during the course of sexual intercourse, the Commonwealth must prove that the victim communicated the withdrawal of consent to prove that a rape occurred. Such withdrawal of consent may be communicated through resistance, words, or gestures, such as attempting to move away. See id. at 474. "[T]he Commonwealth need not prove that the defendant actually knew that the victim withdrew consent. It suffices that the victim reasonably communicated the withdrawal of consent in such a manner that a reasonable person would have known that consent had been withdrawn." Id. It is unsurprising that the defendant failed to request such an instruction, as Sherman was decided over three years  22 after the trial here. 12 The defendant now claims that such an instruction should have been given, because the victim's request that the defendant use a condom while raping her evidenced her consent. We review this claim for a substantial risk of a miscarriage of justice, see Sherman, 481 Mass. at 475-476, and, finding it without merit, we discern none. Society long ago moved beyond the point where a victim's request that a rapist use a condom could be considered consent. See People v. Ireland, 188 Cal. App. 4th 328 , 336 (Cal. Ct. App. 2010) (noting standard instruction in California that "[e]vidence that the woman requested [the defendant] to use a condom or other birth control device is not enough by itself to constitute consent"); Mack v. State, 338 Ga. App. 854 , 857 (2016) (fact that victim asked defendant to put on condom did not negate her fear); State v. Troutman, 148 Idaho 904 , 911 (2010) (whether defendant wore condom "is irrelevant to the 12The defendant suggests that he somehow did request a Sherman instruction when he asked for an instruction consistent with Commonwealth v. Lopez, 433 Mass. 722 , 727-728 (2001), in which the Supreme Judicial Court rejected the proposition that a defendant is entitled to an instruction on the defense of an honest and reasonable mistake as to the victim's consent. The judge, however, opined that his instruction was consistent with Lopez and invited the defendant to submit any proposed language. The next morning, the defendant said, "I think the instruction is okay." Even if we could somehow discern what the defendant was thinking, this would not preserve the issue. See Commonwealth v. King, 77 Mass. App. Ct. 194 , 197 (2010), S.C., 460 Mass. 80 (2011).  23 consent question"); Tyson v. State, 619 N.E.2d 276 , 295-296 (Ind. Ct. App. 1993) (victim's testimony that she asked defendant, "Please put a condom on" during assault "could not, as a matter of law, lead a reasonable person to believe that [the defendant] was reasonably mistaken as to [the victim's] consent to sexual intercourse"); State v. Anderson, 66 So. 3d 568 , 580 (La. Ct. App. 2011) (rejecting contention that there was consent where victim testified "she asked him to use a condom"; "Defendant fails to cite any case law to support that use of a condom necessarily equates with consensual sex"). Here, the victim testified that the sexual encounter with the defendant was nonconsensual at all times. She pushed the defendant away when he first tried to kiss her, and asked that he use a condom only once he had dragged her into the bedroom and pinned her arms down while ignoring her pleas to stop. To be sure, the defendant told the police that the victim had consented to the entire sexual encounter. The Supreme Judicial Court, however, has held that "the defendant's testimony that the victim consented to sexual intercourse will not suffice alone to warrant an instruction on the withdrawal of consent after penetration." Sherman, 481 Mass. at 475. As there was no basis for concluding that the victim initially consented to intercourse and then withdrew that consent, there was no basis for a Sherman instruction. See Commonwealth v. Butler, 97 Mass. 24 App. Ct. 223, 235 (2020) (not reasonable to believe that incapacitated individual in protective custody and under defendant police officer's control consented to indecent assault and battery). 6. Motion to suppress statements. a. Standard of review. The motion judge denied the defendant's motion to suppress his statements during the police interview, finding that (1) the defendant knowingly, intelligently, and voluntarily waived his Miranda rights, and (2) his statements were voluntary. "On appeal, we review a ruling on a motion to suppress by accepting 'the judge's subsidiary findings of fact absent clear error but conduct an independent review of [the] ultimate findings and conclusions of law.'" Commonwealth v. Polanco, 92 Mass. App. Ct. 764 , 769 (2018), quoting Commonwealth v. Ramos, 470 Mass. 740 , 742 (2015). Where, as here, there is a video recording of the interview of the defendant, we "may independently review [the] documentary evidence, and . . . findings drawn from such evidence are not entitled to deference." Commonwealth v. Tremblay, 480 Mass. 645 , 654-655 (2018). Accord Commonwealth v. Molina, 467 Mass. 65 , 72 (2014), quoting Commonwealth v. Hoyt, 461 Mass. 143 , 148-149 (2011) ("we will 'take an independent view' of recorded confessions and make judgments with respect to their contents without deference to the fact  25 finder, who 'is in no better position to evaluate the[ir] content and significance'"). b. Waiver of Miranda rights. The Commonwealth bore the initial burden of proving beyond a reasonable doubt that the defendant's waiver of Miranda rights was "voluntary, knowing, and intelligent." Commonwealth v. Clarke, 461 Mass. 336 , 342 (2012). Accord Commonwealth v. Rivera, 482 Mass. 259 , 265-266 (2019). "Relevant factors in this analysis include the manner in which the interrogation is conducted, whether Miranda warnings were given, the defendant's physical and mental condition, and the defendant's individual characteristics, such as age, education, intelligence, and emotional stability." Id. at 266. Whether a waiver is voluntary depends on "the totality of the circumstances." Commonwealth v. Gallett, 481 Mass. 662 , 668 (2019). Here, the defendant "was informed of his Miranda rights and indicated verbally and in writing that he understood the warnings." Gallett, 481 Mass. at 669. The defendant was thirty-six years old at the time of the interrogation, his emotional and physical condition was unremarkable, and there is no indication that the defendant had cognitive limitations that would affect his waiver and voluntary statements. The detectives made no intentional misrepresentations that could have undermined the defendant's ability to make a free choice,  26 and they did not impermissibly maximize the apparent strength of the Commonwealth's case. See id. at 670-671; Commonwealth v. Spray, 467 Mass. 456 , 467-468 (2014). The detectives' failure to inform the defendant of the charges against him until midway into the interview did not vitiate the voluntariness of the defendant's Miranda waiver, contrary to his claims. At no point did the detectives make a false statement about the charges in Boston, but they did avoid telling the defendant he was charged with rape until after he had categorically denied ever being in Boston. "[A]ny lack of disclosure regarding the ground for an arrest is not the type of 'trick[ery]' that would prevent the defendant's waiver from being knowing, intelligent, and voluntary." Commonwealth v. Cartwright, 478 Mass. 273 , 281-282 (2017), quoting Commonwealth v. Medeiros, 395 Mass. 336 , 345 (1985). "The police are not required to 'inform a suspect of the nature of the crime about which he is to be interrogated.'" Commonwealth v. Hensley, 454 Mass. 721 , 738 (2009), quoting Medeiros, supra. Accord Molina, 467 Mass. at 76 n.13 (failure to inform suspect of nature of crime "does not itself render a statement involuntary"). c. Voluntariness of statements. To use the defendant's statements as evidence against him at trial, the Commonwealth also "must show that any statement made [by a defendant] after a  27 waiver was voluntary, as a product of the defendant's 'rational intellect and free will.'" Rivera, 482 Mass. at 266, quoting Commonwealth v. Hoose, 467 Mass. 395 , 403 (2014). In deciding whether the Commonwealth met its burden, we may consider, among other relevant factors, "the defendant's age, education, intelligence, physical and mental stability, and experience with the criminal justice system." Commonwealth v. Siny Van Tran, 460 Mass. 535 , 559 (2011). Here, the defendant at all times displayed a knowing comprehension of the questions asked of him and voiced lucid and logical responses, which reflected an effort to exonerate himself. See Commonwealth v. Libby, 472 Mass. 37 , 49 (2015) (defendant's exculpatory explanations of events suggested statements were product of defendant's own free will). The defendant responded appropriately to substantive questions posed by the officers, demonstrating an understanding of the nature of their questioning. See Tremblay, 480 Mass. at 656-658 (defendant was responsive to police questions and even minimized his culpability, leading to conclusion that defendant's statements were voluntarily given). Based on the totality of the circumstances, we see no reason to disturb the motion judge's ultimate finding that the Commonwealth had established, beyond a reasonable doubt, that the defendant had knowingly, intelligently, and voluntarily waived his Miranda rights and  28 that he made his statements to the police voluntarily. See Gallett, 481 Mass. at 672; Libby, supra at 48-50. 7. Redaction of video-recorded interrogation. The parties spent considerable effort during trial redacting the video recording of the interview. The Commonwealth's original position was that the defendant's denials should not be admitted, but the trial judge disagreed. The parties then discussed the scope of redactions. The defendant, although noting that he wanted the entire interview suppressed, explained that he "want[ed] more of it rather than less of it" to be admitted. The parties presented the disputed redactions to the trial judge, and the judge ruled on them, siding with the Commonwealth on some redactions and with the defendant on others. On appeal, the defendant proposes additional redactions. Because the defendant did not request these redactions at trial, review is waived and we consider only whether there was a substantial risk of a miscarriage of justice. See Commonwealth v. Rivera, 97 Mass. App. Ct. 285 , 292 (2020); Commonwealth v. Sanchez, 96 Mass. App. Ct. 1 , 8 n.8 (2019). We discern none. The defendant vaguely asserts that accusatory statements by the officers should have been redacted. The interview, however, did not include "repeated statements [by the officers] that they did not believe the defendant." Commonwealth v. Santos, 463  29 Mass. 273 , 288-289 (2012) (admission of officers' frequent accusations that defendant was lying improper). The defendant also asserts that a reference to the defendant's being on probation was mistakenly retained. The parties, by their own description, "went to great pains . . . to make sure that every mention of every arrest that [the defendant] ever had, including the [operating under the influence] prior arrest, anything having to do with bad acts or encounters with the law [was] excised." That the parties missed one mumbled reference to probation does not create a substantial risk of a miscarriage of justice. Similarly, it is difficult to find error, much less a substantial risk of a miscarriage of justice, from the inclusion of the defendant's criticism of his coworkers as possible criminals. In sum, we can discern no substantial risk of a miscarriage of justice. See Rivera, 97 Mass. App. Ct. at 293- 294. Accord Commonwealth v. Shruhan, 89 Mass. App. Ct. 320 , 324 (2016) ("Having elected to pursue this approach at trial, the defendant cannot change tactics on appeal based on the fact that he did not achieve the desired result"). 8. Amendment of indictments. "Under the Sixth Amendment to the United States Constitution and art. 12 [of the Massachusetts Declaration of Rights], the defendant has a right to counsel at every 'critical stage' of the criminal process." Commonwealth v. Johnson, 80 Mass. App. Ct. 505 , 510  30 (2011), quoting Commonwealth v. Woods, 427 Mass. 169 , 174 (1998). "In order to constitute a critical stage, the accused must require assistance in 'coping with legal problems or assistance in meeting his adversary,' and the Sixth Amendment does not apply where there is no possibility 'that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary.'" Commonwealth v. Sargent, 449 Mass. 576 , 580 (2007), quoting United States v. Byers, 740 F.2d 1104 , 1118 (D.C. Cir. 1984). See Robinson v. Commonwealth, 445 Mass. 280 , 286 (2005) ("because the suppression hearing in this case would have required the taking of evidence and also involved the admissibility of substantial evidence that could determine the outcome of the case," suppression hearing was critical stage); Commonwealth v. Medina, 64 Mass. App. Ct. 708 , 721 (2005) (right to counsel at hearings at which evidence is taken). Here, as the fifteen-year statute of limitations approached in 2011, 13 the Commonwealth had a DNA profile of the suspect but did not know his identity. See G. L. c. 277, § 63, as amended by St. 1996, c. 26. Accordingly, the Commonwealth secured 13The statute of limitations for the kidnapping charge would have expired before this time, had the defendant remained a usual and public resident of Massachusetts. See G. L. c. 277, § 63. As it happened, the statute of limitations was tolled by the defendant's nonresidence. See Commonwealth v. White, 475 Mass. 724 , 731 (2016).  31 indictments against "John Doe, (a black male, approximately 5'11" tall, with a thin build, brown eyes, age 18-19 and identified by the DNA profile appended hereto in appendix A- CC#60-531557)." 14 On March 20, 2014, after the defendant was identified, but before he was arraigned, the Commonwealth obtained an ex parte amendment of the indictments to substitute the defendant's name. The defendant contends that he was entitled to the appointment of counsel for this prearraignment, prearrest hearing. The right to counsel protected by the Sixth Amendment, however, does not attach "until the time of arraignment." Commonwealth v. Celester, 473 Mass. 553 , 567 (2016). See Rothgery v. Gillespie County, Tex., 554 U.S. 191 , 199 (2008), quoting 1 W.R. LaFave, J.H. Israel, N.J. King, & O.S. Kerr, Criminal Procedure § 1.4(g), at 135 (3d ed. 2007) (right to counsel "attaches at the [defendant's] initial appearance," when "the magistrate informs the defendant of the charge" against him and "determine[s] the conditions for pretrial release"). The Supreme Judicial Court has held the same with respect to the art. 12 right. Celester, supra. "The 14In Commonwealth v. Dixon, 458 Mass. 446 , 447-448 (2010), the Supreme Judicial Court held that a similar John Doe indictment, which identified the accused by his unique DNA profile and a physical description, comported with statutory requirements and had the legal effect of tolling the statutory limitations period.  32 arraignment signals 'the initiation of adversary judicial proceedings' and thus the attachment of the Sixth Amendment . . . ." Michigan v. Jackson, 475 U.S. 625 , 629 (1986). Interpreting art. 12, the Supreme Judicial Court has consistently held that the right to counsel "attaches at the time judicial proceedings are commenced." Commonwealth v. Neary-French, 475 Mass. 167 , 172 (2016). See Commonwealth v. Ortiz, 422 Mass. 64 , 67 n.1 (1996) ("There is no authority for the proposition that the right to counsel under the Sixth Amendment . . . or under art. 12 . . . arises prior to arraignment"). Accordingly, the defendant had no right to counsel at the time of the amendment of the indictments. 9. Conclusion. The judgments are affirmed. The order of the single justice denying the defendant's motion to compel is affirmed.15 So ordered. 15The defendant also filed a notice of appeal of the denial of his motions for postconviction discovery. The defendant has not briefed the denial of these motions, so any issue regarding them is waived. See Frias, 53 Mass. App. Ct. at 495.

2020-12-01 14:00:20.55954+00

http://media.ca11.uscourts.gov/opinions/unpub/files/201913989.pdf

USCA11 Case: 19-13989 Date Filed: 12/01/2020 Page: 1 of 13 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 19-13989 Non-Argument Calendar ________________________ D.C. Docket No. 1:15-cr-20914-UU-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANDERSON JEAN, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (December 1, 2020) Before ROSENBAUM, LAGOA, and BRASHER, Circuit Judges. PER CURIAM:  USCA11 Case: 19-13989 Date Filed: 12/01/2020 Page: 2 of 13 Anderson Jean is a federal prisoner who is serving an 84-month total sentence after pleading guilty to two immigration offenses. In this direct appeal, he seeks to vacate one of his guilty pleas, arguing that the district court violated Rule 11, Fed R. Crim. P., by failing to ensure that an adequate factual basis supported his plea or that he understood the nature of the charge against him. After careful review, we affirm. I. In November 2015, Jean was charged with twelve counts of knowingly encouraging and inducing an alien to enter the United States, 8 U.S.C. § 1324 (a)(1)(A)(iv) (Counts 1-12), and one count of aiding an inadmissible alien who had been convicted of an aggravated felony to enter the United States, 8 U.S.C. § 1327 (Count 13). Specifically, Count 13 charged that Jean Did knowingly aid and assist an alien, CHRISTOVAL REECE, to enter the United States, said alien being inadmissible under Title 8, United States Code, Section 1182(a)(2), as an alien who had been convicted of an aggravated felony. Jean agreed to plead guilty to Counts 1 and 13 in a written plea agreement. In exchange, the government agreed to move to drop the remaining counts after sentencing, to recommend a three-level acceptance-of-responsibility reduction be applied in Jean’s guidelines calculations, and to recommend that his sentences run concurrently with those imposed in two other, unrelated criminal cases. The plea agreement contained an appeal waiver, in which Jean agreed to waive his right to 2  USCA11 Case: 19-13989 Date Filed: 12/01/2020 Page: 3 of 13 “assert any claim that . . . the admitted conduct does not fall within the scope of the statute of conviction.” In a written factual proffer that accompanied the plea agreement, the parties stipulated that the government could prove the following facts if the case proceeded to trial. In March 2015, the U.S. Coast Guard sent a small law-enforcement vessel to intercept a suspicious vessel that was traveling in international waters toward Miami without navigational lights. The vessel did not stop immediately when the law-enforcement vessel activated its lights and sirens, but eventually it did. By the time it had stopped, Jean, who was the master of the vessel, had stepped away from the helm. Officers found approximately $6,000 in Jean’s possession. Thirteen people, including Jean, were onboard, and none had permission to enter the United States. Jean and four other Haitian nationals were transferred to another Coast Guard boat and taken back to Haiti. The remaining individuals were brought ashore for processing by U.S. Border Patrol, which determined that Reece had previously been removed from the United States and had previously been convicted of an aggravated felony. In interviews, several individuals, including Reece, identified Jean as the operator of the vessel and said they had paid money to a smuggler in the Bahamas to be brought to the United States. At the plea colloquy, Jean was placed under oath and testified as follows. He dropped out of school in the sixth grade and was able to read and write in English 3  USCA11 Case: 19-13989 Date Filed: 12/01/2020 Page: 4 of 13 with some difficulty. He had received psychiatric treatment while in prison because he had been shot in the head, which had resulted in some nerve problems. Specifically, he sometimes could not sleep at night because he would hear voices and have bad dreams. He was not taking any medication for his condition, but he was not hearing voices at the hearing. When asked if he understood what his attorney had explained to him about his case, Jean stated “I understand everything.” However, when the court asked if he had any difficulty explaining the facts of his case to his attorney, Jean became confused and explained that he was “kind of slow” and “had special classes in school.” The court stated that it wanted to know if he had been able to discuss the facts of his case with his attorney, and Jean said he had. The court asked Jean’s attorney if he had any reason to doubt Jean’s competence, and Jean’s attorney said he did not. When the court asked Jean if he was fully satisfied with his counsel’s representation, Jean responded, “Yes, Ma’am. I just want to get this over with.” Jean further remarked, “I just . . . want to put it behind me because I can’t live at peace in here to know that I got cases on me.” The court turned to the plea agreement and began to explain the charges against Jean. The following exchange occurred: THE COURT: Listen, Mr. Jean, you know that in this case, the case from 2015, you’re charged with having encouraged and induced several 4  USCA11 Case: 19-13989 Date Filed: 12/01/2020 Page: 5 of 13 aliens to come into the United States, including at least one inadmissible alien. Do you know that? THE DEFENDANT: I understand the case, but I do not know those people. THE COURT: Well, I don’t care whether you know them or not. Do you understand those are the charges against you? THE DEFENDANT: Yes, ma’am. The court turned to the factual proffer, and Jean confirmed that he signed it after reviewing it with his attorney. He confirmed that he agreed with every fact in the proffer. Jean pled guilty to Counts 1 and 13. The district court found that Jean was aware of the nature of the charges, that his pleas were knowing and voluntary, and that his pleas were supported by an independent basis in fact containing each of the essential elements of the offenses. It accepted his pleas and adjudged him guilty. Jean did not object. The district court sentenced Jean to 60 months’ imprisonment as to Count 1 and 84 months’ imprisonment as to Count 13, to run concurrently. It imposed his 84-month total sentence to run concurrently with the sentences for his two unrelated convictions. Upon the government’s motion, it dismissed Counts 2 through 12 of the indictment. Jean now appeals. II. 5  USCA11 Case: 19-13989 Date Filed: 12/01/2020 Page: 6 of 13 Jean contends that the district court violated Rule 11(b)(3), Fed. R. Crim. P., by failing to ensure that his plea of guilty to Count 13 was supported by a sufficient factual basis. He further contends that, because the record contains no evidence as to an essential element of the offense, his guilty plea could not have been knowing and voluntary, in violation of Rule 11(b)(1)(G). Because he did not object to the plea colloquy below, we review for plain error.1 See United States v. Rodriguez, 751 F.3d 1244 , 1251 (11th Cir. 2014) (“We review for plain error when a defendant . . . fails to object in the district court to a claimed Rule 11 violation, including a claim that there was an insufficient factual basis for a guilty plea.”). Under plain-error review, Jean bears the burden of showing (1) an error (2) that is plain and (3) that affects substantial rights. Id. To meet the third prong, the defendant “must show a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74 , 83 (2004). We may “consult the whole record when considering the effect of any error on substantial rights.” United States v. Vonn, 535 U.S. 55 , 59 (2002). A. 1 The government contends that Jean has waived his factual-sufficiency claim through the appeal waiver in his plea agreement. However, we have held that an appeal waiver does not bar a Rule 11 claim of an insufficient factual basis to support a guilty plea. See United States v. Puentes- Hurtado, 794 F.3d 1278 , 1284 (11th Cir. 2015). We also reject the government’s contention that Jean waived this claim by pleading guilty. See id. at 1286-87 . 6  USCA11 Case: 19-13989 Date Filed: 12/01/2020 Page: 7 of 13 First, the factual basis: Ordinarily, “[t]he standard for evaluating challenges to the factual basis for a guilty plea is whether the trial court was presented with evidence from which it could reasonably find that the defendant was guilty.” United States v. Frye, 402 F.3d 1123 , 1128 (11th Cir. 2005) (quotation marks omitted). The purpose of the factual-basis requirement is “to protect a defendant who mistakenly believes that his conduct constitutes the criminal offense to which he is pleading.” Id. (quotation marks omitted). i. Before we turn to Jean’s claim that his guilty plea lacked a sufficient factual basis, we must resolve the parties’ dispute as to what the government needed to prove to convict Jean of violating § 1327. Section 1327 makes it a crime to “knowingly aid[] or assist[] any alien inadmissible under section 1182(a)(2) (insofar as an alien inadmissible under such section has been convicted of an aggravated felony) . . . of this title to enter the United States.” 8 U.S.C. § 1327 . We have held that, to convict a defendant of violating § 1327, the government must prove beyond a reasonable doubt that (1) the defendant knowingly aided or assisted an alien to enter the United States; (2) the defendant knew that the alien was inadmissible; and (3) the alien was inadmissible under 8 U.S.C. § 1182 (a)(2) for having been convicted of an aggravated felony. United States v. Lopez, 590 F.3d 1238 , 1254 (11th Cir. 2009). The government may 7  USCA11 Case: 19-13989 Date Filed: 12/01/2020 Page: 8 of 13 satisfy the second element by proving that the defendant knew the alien was inadmissible for any reason—it does not have to prove that the defendant knew the alien was inadmissible due to a prior aggravated felony conviction. Id. at 1254-55 . In Lopez, we held that it was sufficient that the defendant knew his passengers were seeking to enter the United States without valid entry documents, which made them inadmissible under 8 U.S.C. 1182(a)(7). See id. Jean concedes that Lopez is controlling as to the elements of § 1327 but argues that it was wrongly decided and is no longer good law in light of Rehaif v. United States, 139 S. Ct. 2191 (2019), and McFadden v. United States, 576 U.S. 186 (2015). In Rehaif, the Supreme Court interpreted 18 U.S.C. § 924 (a)(2), which imposes criminal penalties on “whoever knowingly violates” 18 U.S.C. § 922 (g), and held that the word “knowingly” applied to every material element of § 922(g). Rehaif, 139 S. Ct. at 2200 . In McFadden, the Supreme Court held that 21 U.S.C. § 841 (a)(1), which makes it unlawful “for any person knowingly or intentionally to manufacture, distribute, or dispense . . . a controlled substance,” required the government to prove that the defendant knew he was dealing with a controlled substance. McFadden, 576 U.S. at 188-89. Jean argues that, because the word “knowingly” in § 1327 introduces the elements of the crime, it applies to all three of those elements, and the government should be required to prove that he knew that 8  USCA11 Case: 19-13989 Date Filed: 12/01/2020 Page: 9 of 13 Reece was inadmissible because he had committed an aggravated felony. See Rehaif, 139 S. Ct. at 2196 . But under our prior-panel precedent rule, we are bound by Lopez until it is overruled or undermined to the point of abrogation by the Supreme Court or by this court sitting en banc. United States v. Gillis, 938 F.3d 1181 , 1197 (11th Cir. 2019). To overrule or abrogate a prior panel’s decision, the subsequent Supreme Court or en banc decision “must be clearly on point and must actually abrogate or directly conflict with, as opposed to merely weaken, the holding of the prior panel.” Id. (quotation marks omitted). Rehaif and McFadden do not meet that mark. Neither case is clearly on point, as the statutes they interpret come from different parts of the criminal code and differ in structure from § 1327. See 18 U.S.C. §§ 922 (g); 924(a)(2); 21 U.S.C. § 841 (a)(1). Further, nether case mentions Lopez or § 1327, meaning they do not actually abrogate or directly conflict with our holding. Accordingly, we remain bound by our prior precedent. Next, Jean argues that, regardless of our holding in Lopez, the government was required to prove that he knew Reece was inadmissible as an aggravated felon because his indictment alleged such knowledge in Count 13. But the indictment tracked the language of the statute, which requires only that the government prove that Jean knew Reece was inadmissible. See Lopez, 590 F.3d at 1254-55 . 9  USCA11 Case: 19-13989 Date Filed: 12/01/2020 Page: 10 of 13 Accordingly, before accepting Jean’s guilty plea, the district court was required to ensure that a sufficient factual basis supported these essential elements: (1) Jean knowingly aided or assisted Reece to enter the United States; (2) Jean knew that Reece was inadmissible; and (3) Reece was inadmissible under 8 U.S.C. § 1182 (a)(2) for having been convicted of an aggravated felony. Id.; Fed. R. Crim. P. 11(b)(3). Jean argues that the court plainly erred by failing to do so. We address this argument now. ii. The government concedes that the record contained no direct evidence to support the second element of § 1327—that Jean knew Reece was inadmissible. At the plea colloquy, Jean told the district court that he did not know any of the people he was transporting, and the district court did not follow up to ask if he knew of their inadmissible status. In addition, the factual proffer stated that the individuals interviewed by Border Patrol said that they paid a smuggler, not Jean himself, to be taken to the United States. This distinguishes Jean’s case from Lopez, in which it was “undisputed that Lopez knew . . . that his passengers were undocumented aliens seeking entry to the United States.” Lopez, 590 F.3d at 1255 . Jean argues that, because his knowledge that Reece was inadmissible was an essential element of the offense, it must have been expressly established in the plea 10  USCA11 Case: 19-13989 Date Filed: 12/01/2020 Page: 11 of 13 agreement, factual proffer, or plea colloquy, not silently inferred by the district court based on circumstantial evidence. But our review of the district court’s determination that a plea is supported by sufficient facts is deferential, even when we are not reviewing for plain error. See Frye, 402 F.3d at 1129 (evaluating the appellant’s Rule 11(b)(3) challenge for an abuse of discretion). And under plain-error review, we have upheld a defendant’s guilty plea based on circumstantial evidence. In Puentes Hurtado, the defendant stated that he agreed to “most” of the government’s factual proffer, including that he had transported money to El Paso, Texas, but the district court did not question him further as to which parts he disagreed with before accepting his guilty plea on a drug- trafficking conspiracy charge. Puentes Hurtado, 794 F.3d at 1282-83, 1286. We held that, even if he admitted only to transporting drug proceeds, that action furthered the purpose of the conspiracy and, therefore, provided circumstantial evidence of his knowing participation in the conspiracy. Id. at 1287. Here, Jean admitted in the factual proffer that he was the master of a vessel transporting twelve individuals, including Reece, who had paid a smuggler for passage to the United States. When the Coast Guard attempted to stop his vessel, he did not immediately stop. Jean had $6,000 on his person, and none of the twelve individuals, nor Jean, was admissible to the United States. Although the evidence is circumstantial, the district court could reasonably find, based on the proffer, that 11  USCA11 Case: 19-13989 Date Filed: 12/01/2020 Page: 12 of 13 Jean knew Reece was inadmissible. See Frye, 402 F.3d at 1128; Lopez, 590 F.3d at 1254-55 . Accordingly, it did not plainly err in finding that a sufficient factual basis supported his guilty plea to Count 13. B. Next, Jean argues that his plea to Count 13 was not knowing and voluntary because the district court did not explain the essential elements of § 1327 at the plea colloquy, and he did not otherwise understand them. Rule 11 mandates that courts inform the defendant of, and determine that he understand, “the nature of each charge to which the defendant is pleading.” Fed. R. Crim. P. 11(b)(1)(G). There is no specific way that a district court is required to inform the defendant of the nature of the charges. Puentes-Hurtado, 794 F.3d at 1286. The adequacy of the colloquy depends on various factors, including the complexity of the charges and the defendant’s intelligence and sophistication. Id. Here, Jean cannot show that any error the district court may have made in failing to explain the elements of his § 1327 charge affected his substantial rights. See Dominguez Benitez, 542 U.S. at 83 . He argues that, had he understood the knowledge requirement correctly, he would not have pled guilty to Count 13 and 12  USCA11 Case: 19-13989 Date Filed: 12/01/2020 Page: 13 of 13 would have been subject to only the 60-month statutory maximum in Count 1, making his prison term at least two years lighter. But as we concluded above, the record reasonably supports a finding that Jean knew Reece was inadmissible. And Jean did receive significant benefits by pleading guilty: the government moved to drop eleven of the thirteen counts against him, recommended a three-level acceptance-of-responsibility reduction in his guideline calculation, and recommended that his sentences in this case and his two other, unrelated cases all run concurrently. Plus, Johnson received the benefit of having his sentence in this case run concurrently with his sentences in two separate cases against him for illegal reentry after deportation and for being a felon in possession of a firearm. The record also contains no indication that the government would have been willing to allow Jean to plead guilty to only Count 1. In addition, at the plea colloquy, Jean stated numerous times that he “just want[ed] to get this over with.” Jean has not met his burden to show that he would not have pled guilty if the district court had more fully explained the essential elements of § 1327. See Dominguez Benitez, 542 U.S. at 83 . III. For the reasons stated, we reject Jean’s request to vacate his guilty plea as to Count 13, and we affirm his convictions and sentences. AFFIRMED. 13

2020-12-01 14:00:21.667156+00

http://media.ca11.uscourts.gov/opinions/unpub/files/201913178.pdf

USCA11 Case: 19-13178 Date Filed: 12/01/2020 Page: 1 of 17 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 19-13178 ________________________ D.C. Docket No. 4:18-cv-00188-RSB-CLR JUSTIN OLTMANNS, Plaintiff-Appellant, versus INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, et al., Defendants-Appellees. ________________________ Appeal from the United States District Court for the Southern District of Georgia ________________________ (December 1, 2020) Before MARTIN, LUCK, and BRASHER, Circuit Judges. MARTIN, Circuit Judge: Justin Oltmanns is a member of the International Longshoremen’s Association, Local 1475 Clerks and Checkers Union (“Local 1475”) and is employed by Georgia Stevedore Association, Inc. (“Georgia Stevedore”). He alleges that Local 1475 and Georgia Stevedore denied him seniority status that he  USCA11 Case: 19-13178 Date Filed: 12/01/2020 Page: 2 of 17 was entitled to based on past practice. He also alleges they improperly failed to consider his seniority grievance. Mr. Oltmanns sued Local 1475 and Georgia Stevedore, bringing what is called a “hybrid section 301/fair representation claim.” This type of claim requires a plaintiff to show both that his union breached its duty of fair representation and that his employer breached a collective bargaining agreement. See Coppage v. U.S. Postal Serv., 281 F.3d 1200 , 1204 (11th Cir. 2002). The District Court dismissed Mr. Oltmanns’s first amended complaint for failure to state a claim and denied him leave to amend his complaint a second time based on the court’s finding that any amendment would be futile. After careful consideration, and with the benefit of oral argument, we hold that neither complaint alleges sufficient facts to state a hybrid section 301/fair representation claim. We therefore affirm the District Court’s rulings. I. BACKGROUND Mr. Oltmanns works for Georgia Stevedore at the Port of Savannah in Savannah, Georgia.1 He has been a member of Local 1475 since July 2007 and has worked both as a “deck and dockman” and as a “clerk and checker.” A deck and dockman works on the decks of ships and the docks next to ships, performing clerical work, keeping track of where containers are, and moving the containers to 1 Mr. Oltmanns does not allege that Georgia Stevedore is his employer, but the District Court assumed as much. The parties here agree on this point, so we also assume that Georgia Stevedore is Mr. Oltmanns’s employer. 2  USCA11 Case: 19-13178 Date Filed: 12/01/2020 Page: 3 of 17 where they need to go. A clerk and checker works offsite on land, arranging transportation to and from the docks. Mr. Oltmanns raises the issue of whether he is entitled to seniority as a clerk and checker on account of his deck and dockman work. A few documents are relevant for this issue. Under the umbrella collective bargaining agreement, employment seniority is “decided and enforced on a local basis.” Local 1475 and Georgia Stevedore have a local collective bargaining agreement and a local seniority plan. The seniority plan states that seniority for “Checkers and Clerks, etc., shall be classified by the Seniority Board” based on the accumulation of at least 700 work hours for a specific contract year. And although the seniority plan provides for seniority for clerks and checkers, it does not expressly mention seniority for deck and dockmen. The same is true of the collective bargaining agreement.2 The deck and dockmen are recognized in a memorandum of understanding between Local 1475 and Georgia Stevedore that says “Deck and Dockmen shall work under the Clerk’s and Checker’s Agreement of Local 1475.” This refers to the local collective bargaining agreement that incorporates the seniority plan. But while the memorandum of understanding does recognize the 2 Local 1475 submitted copies of the collective bargaining agreement and the seniority plan as exhibits to its motion to dismiss. A court may consider documents attached to a motion to dismiss without converting the motion into one for summary judgment when the documents are “central to the plaintiff’s claim” and “undisputed.” Day v. Taylor, 400 F.3d 1272 , 1276 (11th Cir. 2005). Mr. Oltmanns references and relies on these documents throughout his complaint and he does not dispute their authenticity, so we consider them here. 3  USCA11 Case: 19-13178 Date Filed: 12/01/2020 Page: 4 of 17 deck and dockmen, it does not discuss seniority for them and neither does it modify the seniority plan for clerks and checkers.3 Mr. Oltmanns says that “[p]ast port practice has been that when a person makes their hours as a Deck and Dockmen those hours are transferrable to Clerk and Checkers in regard to seniority classification.” In other words, based on this past port practice, Mr. Oltmanns argues that hours worked as a deck and dockman can cross over and count toward clerk and checker seniority. Despite this purported practice, the record before us reflects no formal procedures for counting “crossover hours” for the purposes of seniority, and the relevant governing documents outlined above are “silent on the cross over seniority” issue. According to Mr. Oltmanns, he has repeatedly worked the number of hours as a deck and dockman that should qualify him for clerk and checker seniority. For instance, in the 2015–2016 contract year, he worked more than 1100 hours as a deck and dockman but was refused seniority as a clerk and checker. Mr. Oltmanns filed a grievance about this discrepancy in seniority treatment, arguing that the hours he worked as a deck and dockman should have entitled him to clerk and checker seniority. A grievance hearing was held before the Port 3 Unlike the collective bargaining agreement and the seniority plan, the memorandum of understanding was not attached to the operative complaint or a motion to dismiss. But because the District Court considered that document, which was attached to Mr. Oltmanns’s initial complaint, we reference it here. 4  USCA11 Case: 19-13178 Date Filed: 12/01/2020 Page: 5 of 17 Grievance Committee in February 2018.4 During the hearing, Mr. Oltmanns was told his matter would be “tabled due to pending litigation.” Mr. Oltmanns says there was no pending litigation and there has been no further action on his seniority grievance. In August 2018, Mr. Oltmanns sued Local 1475 in the Southern District of Georgia. He alleged that Local 1475 breached its duty of fair representation in violation of section 301 of the Labor Management Relations Act (the “LMRA”) by failing to grant him proper seniority classification. After Local 1475 filed a motion to dismiss for failure to state a claim, Mr. Oltmanns amended his complaint, adding Georgia Stevedore as a defendant. In the amended complaint, he alleged that both Local 1475 and Georgia Stevedore breached the duty of fair representation in violation of section 301 of the LMRA. 5 Local 1475 then filed another motion to dismiss for failure to state a claim. Local 1475 argued that in order for Mr. Oltmanns to state a hybrid section 301/fair representation claim, he must allege both that (i) his union, Local 1475, breached its duty of fair representation, and (ii) his employer, Georgia Stevedore, breached the collective 4 The first amended complaint alleges that the “Port Grievance Committee” heard his grievance and indeed never mentions the Seniority Board. Now Mr. Oltmanns “accepts the record evidence offered by the Defendant Local 1475” that it was actually the Seniority Board. We understand that the Seniority Board is composed of the president and one member of Local 1475 as well as two members of Georgia Stevedore. 5 The amended complaint also made a claim for attorney’s fees, but Mr. Oltmanns does not raise that issue on appeal. 5  USCA11 Case: 19-13178 Date Filed: 12/01/2020 Page: 6 of 17 bargaining agreement. Under the first prong of the hybrid claim, Local 1475 said Mr. Oltmanns did not plausibly allege that its conduct toward him was “arbitrary, discriminatory, or in bad faith” and thus he had not plausibly alleged Local 1475 breached the duty of fair representation. And under the second prong, Local 1475 said Mr. Oltmanns never alleged that Georgia Stevedore breached any collective bargaining agreement. Georgia Stevedore filed its own motion to dismiss for failure to state a claim, which largely reiterated the arguments made by Local 1475. In arguing against dismissal, Mr. Oltmanns stated “the amended complaint makes the proper allegations and gives substantial supporting facts” for the breach of the duty of fair representation claim. Mr. Oltmanns later filed a request for leave to amend his complaint again and attached his proposed second amended complaint. In this proposed second amended complaint, Mr. Oltmanns sought to add an additional claim alleging that Georgia Stevedore breached the collective bargaining agreement. Local 1475 and Georgia Stevedore opposed Mr. Oltmanns’s request for leave to amend, arguing that any amendment would be futile. The District Court primarily analyzed the proposed second amended complaint, as opposed to the operative pleading, which was the first amended complaint. It considered whether the proposed complaint would survive a motion 6  USCA11 Case: 19-13178 Date Filed: 12/01/2020 Page: 7 of 17 to dismiss. The court observed that the “only material difference” between the operative complaint and the proposed complaint was “the addition of a claim against [Georgia Stevedore] for breach of the collective bargaining agreement.” Therefore, “[t]o the extent that the proposed Second Amended Complaint successfully states a claim for relief,” the District Court would grant Mr. Oltmanns’s request for leave to amend and deny the motions to dismiss as moot. But to “the extent that the proposed Second Amended Complaint’s amendment would be futile, the Amended Complaint would similarly fail to state a claim,” such that the District Court would grant the motions to dismiss. Starting with the proposed complaint’s allegations that Local 1475 breached its duty of fair representation, the District Court observed that the “allegations in the Complaint[] do not support a finding that [Local 1475’s] conduct was arbitrary, discriminatory, or in bad faith.” And as to the proposed claim that Georgia Stevedore breached the collective bargaining agreement, the District Court noted that Mr. Oltmanns did “not cite to any provision of the collective bargaining agreement or allege facts supporting a breach thereof.” Based on its findings that neither complaint adequately alleged that Local 1475 breached its duty of fair representation and that Georgia Stevedore breached the collective bargaining agreement, the District Court granted the motions to dismiss the first amended 7  USCA11 Case: 19-13178 Date Filed: 12/01/2020 Page: 8 of 17 complaint and denied Mr. Oltmanns’s request for leave to file the proposed second amended complaint as futile. This is Mr. Oltmanns’s appeal. II. STANDARDS OF REVIEW We review de novo a district court’s order granting a motion to dismiss for failure to state a claim. Lawson-Ross v. Great Lakes Higher Educ. Corp., 955 F.3d 908 , 915 (11th Cir. 2020). In order 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, 129 S. Ct. 1937 , 1949 (2009) (quotation marks omitted). Although legal conclusions “are not entitled to the assumption of truth,” we “assume the[] veracity” of “well-pleaded factual allegations” and then “determine whether they plausibly give rise to an entitlement to relief.” Id. at 679 , 129 S. Ct. at 1950 . If not, then “the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)). Although we generally review a denial of leave to amend a complaint for abuse of discretion, we “review de novo an order denying leave to amend on the grounds of futility, because it is a conclusion of law that an amended complaint would necessarily fail.” Boyd v. Warden, Holman Corr. Facility, 856 F.3d 853 , 864 (11th Cir. 2017). 8  USCA11 Case: 19-13178 Date Filed: 12/01/2020 Page: 9 of 17 III. DISCUSSION Mr. Oltmanns argues the District Court erred by (i) granting the motions to dismiss the first amended complaint and (ii) denying him leave to file the proposed second amended complaint. As noted above, the District Court considered these two issues together by evaluating Mr. Oltmanns’s proposed second amended complaint. Again, the only difference between the operative and proposed complaints was the addition of the breach of a collective bargaining agreement claim against Georgia Stevedore. Thus “[t]o the extent that the proposed Second Amended Complaint’s amendment would be futile, the Amended Complaint would similarly fail to state a claim.” We see nothing wrong with the District Court’s analytical approach, but we will nevertheless conduct our review of each issue separately. First, we address whether the first amended complaint fails to state a claim against either Local 1475 or Georgia Stevedore, or both. Second, we consider whether the proposed second amended complaint fails to state a claim, such that leave to amend would be futile. A. The first amended complaint fails to state a claim. Mr. Oltmanns’s claim against Local 1475 and Georgia Stevedore is considered a “hybrid § 301/fair representation claim.” Coppage, 281 F.3d at 1204 (quoting DelCostello v. Int’l Brotherhood of Teamsters, 462 U.S. 151 , 165, 103 S. Ct. 2281 , 2291 (1983)) (quotation marks omitted). The claim is “hybrid” because 9  USCA11 Case: 19-13178 Date Filed: 12/01/2020 Page: 10 of 17 it includes two causes of action that are “inextricably interdependent.” Id. (quotation marks omitted). One cause of action is against an employee’s union for breaching its duty of fair representation, which duty is implied under the National Labor Relations Act. Id.; see also Lobo v. Celebrity Cruises, Inc., 704 F.3d 882 , 886 & n.5 (11th Cir. 2013) (noting that the duty of fair representation arises under federal common law and is implied from section 9(a) of the National Labor Relations Act). The other cause of action is against the employer for breaching a collective bargaining agreement. Coppage, 281 F.3d at 1204 . That cause of action is based on section 301 of the LMRA, which states that “[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce . . . may be brought in any district court of the United States having jurisdiction of the parties.” 29 U.S.C. § 185 (a). Thus, to succeed on his hybrid claim at the motion to dismiss stage, Mr. Oltmanns must plausibly allege both that (i) his union, Local 1475, breached its duty of fair representation, and (ii) his employer, Georgia Stevedore, breached a collective bargaining agreement. See Parker v. Connors Steel Co., 855 F.2d 1510 , 1519 (11th Cir. 1988). The absence of either allegation is fatal to the complaint: “[I]n order to prevail the employee must satisfy his burden of proving a breach of contract by the Company and a breach of the Union’s duty of fair representation.” Id. Applying this legal framework here, there is no question that the first amended 10  USCA11 Case: 19-13178 Date Filed: 12/01/2020 Page: 11 of 17 complaint fails as a matter of law. The first amended complaint does not allege that Georgia Stevedore, Mr. Oltmanns’s employer, breached any collective bargaining agreement. Therefore, the first amended complaint lacks one of the required elements of a hybrid section 301/fair representation claim, so it fails to state a claim. See id. The District Court properly dismissed the first amended complaint. B. The proposed second amended complaint fails to state a claim, so leave to amend would be futile. Mr. Oltmanns’s proposed second amended complaint added the claim alleging a breach of the collective bargaining agreement by Georgia Stevedore that had been missing from the first amended complaint. Under the Federal Rules of Civil Procedure, a district court “should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). However, a court need not give leave “where amendment would be futile.” Corsello v. Lincare, Inc., 428 F.3d 1008 , 1014 (11th Cir. 2005) (per curiam) (quotation marks omitted). Here, the District Court denied leave to amend as futile. We review this decision de novo “because it is a conclusion of law that an amended complaint would necessarily fail.” Boyd, 856 F.3d at 864. Amendment is futile “when the complaint as amended is still subject to dismissal because, for example, it fails to state a claim for relief.” Chang v. JPMorgan Chase Bank, N.A., 845 F.3d 1087 , 1094 (11th Cir. 2017) (quotation marks omitted). When deciding whether the 11  USCA11 Case: 19-13178 Date Filed: 12/01/2020 Page: 12 of 17 complaint as amended is still subject to dismissal, the usual motion to dismiss standard applies. Id. Therefore, we must decide whether the proposed second amended complaint states a hybrid section 301/fair representation claim. We look first to Mr. Oltmanns’s claim that Local 1475 breached its duty of fair representation. Because we conclude that the proposed complaint fails to sufficiently allege that Local 1475 breached that duty, we end our analysis there. We need not reach the claim that Georgia Stevedore breached a collective bargaining agreement, and we do not. Under the duty of fair representation, a union “has an obligation to fairly represent the employee during the course of grievance proceedings.” Harris v. Schwerman Trucking Co., 668 F.2d 1204 , 1206 (11th Cir. 1982). The union breaches its duty of fair representation when its “handling of the grievance was either arbitrary, discriminatory, or in bad faith.” Id. (quotation marks omitted); see also Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65 , 67, 111 S. Ct. 1127 , 1130 (1991) (holding that this rule “applies to all union activity”). As an initial matter, to the extent Mr. Oltmanns grounds any part of his duty of fair representation claim on his allegation that the Port Grievance Committee improperly tabled his grievance because of nonexistent pending litigation, the proposed complaint contains a fundamental defect. Namely, while the proposed complaint says the Port Grievance Committee tabled his grievance based on that purported falsity, it entirely fails to allege that Local 1475 agreed to, 12  USCA11 Case: 19-13178 Date Filed: 12/01/2020 Page: 13 of 17 advocated for, or even contemplated that decision. 6 Without such allegations, we cannot say “the union’s handling of the grievance” was arbitrary, discriminatory, or in bad faith. See Schwerman Trucking, 668 F.2d at 1206 (emphasis added). And even if the proposed complaint alleged that Local 1475 made the decision to table Mr. Oltmanns’s grievance based on the nonexistent pending litigation, the proposed complaint still does not sufficiently allege that Local 1475’s actions were arbitrary, discriminatory, or in bad faith. We address each in turn. A union’s actions are arbitrary “only if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a ‘wide range of reasonableness’ as to be irrational.” Air Line Pilots, 499 U.S. at 67 , 111 S. Ct. at 1130 (citation omitted). Likewise, a union has “considerable latitude in its representation of employees.” Schwerman Trucking, 668 F.2d at 1206 . The arbitrariness prong prohibits a union from arbitrarily ignoring a meritorious grievance or processing it in a perfunctory fashion. Id. On the other hand, as “the exclusive agent for all employees,” the union has the “power to sift out frivolous grievances” and to “abandon processing of a grievance which it determines in good faith to be meritless.” Harris v. Chem. Leaman Tank Lines, Inc., 437 F.2d 167 , 6 Mr. Oltmanns now argues it was the Seniority Board that tabled his grievance, but, as noted, this is contrary to the allegations of his complaint. Regardless, Local 1475 members made up only half of the Seniority Board, so any decision by the Seniority Board is not necessarily attributable to Local 1475. 13  USCA11 Case: 19-13178 Date Filed: 12/01/2020 Page: 14 of 17 171 (5th Cir. 1971) (per curiam).7 Finally, “neither negligence on the part of the union nor a mistake in judgment is sufficient to support a claim that the union acted in an arbitrary and perfunctory manner.” Schwerman Trucking, 668 F.2d at 1206 . Mr. Oltmanns says he plausibly alleges that Local 1475 acted arbitrarily because there was a past port practice that allowed him to obtain seniority. Even so, when he filed a grievance on that issue, Local 1475 tabled that grievance giving the allegedly false explanation that there was pending litigation. Assuming the truth of Mr. Oltmanns’s allegations, we still see a couple problems with the proposed complaint’s allegations of arbitrary action. First, the proposed complaint fails to allege that Local 1475 knew of the pending litigation justification. Without this allegation of knowledge on the part of Local 1475, the union could have just as easily considered Mr. Oltmanns’s grievance to be frivolous or meritless based on its assessment that the governing documents did not provide for crossover seniority. This offers a basis by which Local 1475 exercised its power to sift out that grievance without arbitrariness. See Chem. Leaman Tank Lines, 437 F.2d at 171; see also Schwerman Trucking, 668 F.2d at 1206 (noting that the arbitrariness prong prohibits a union from arbitrarily ignoring or giving perfunctory review to a 7 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. Id. at 1209 . 14  USCA11 Case: 19-13178 Date Filed: 12/01/2020 Page: 15 of 17 meritorious grievance). Second, even if we assume Local 1475 knew of the pending litigation justification, the complaint does not allege that Local 1475 knew that justification was false. Instead, Local 1475 could have made an honest mistake and thought there was pending litigation. Such “negligence” or “mistake in judgment” is not sufficient to show arbitrariness, particularly in light of the “considerable latitude” given to unions in representing employees. See Schwerman Trucking, 668 F.2d at 1206 ; see also Air Line Pilots, 499 U.S. at 67 , 111 S. Ct. at 1130 (explaining that a union’s actions are arbitrary only if “the union’s behavior is so far outside a ‘wide range of reasonableness’ as to be irrational” (citation omitted)). In light of these shortcomings, the proposed complaint does not sufficiently allege that Local 1475 acted arbitrarily. 8 Moving to the discrimination prong, a plaintiff must show “discrimination that is intentional, severe, and unrelated to legitimate union objectives.” Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Emps. of Am. v. Lockridge, 403 U.S. 274 , 301, 91 S. Ct. 1909 , 1925 (1971). Mr. Oltmanns says he alleges a contrast between the application of the crossover seniority rules to other workers with the application of those rules to himself. True. Mr. Oltmanns alleges that, 8 The proposed complaint also alleges in passing that “Local 1475 has failed and refused to assert defenses on behalf of Plaintiff.” However, such “allegations are conclusory and not entitled to be assumed true.” Iqbal, 556 U.S. at 681 , 129 S. Ct. at 1951 . For example, the complaint does not explain what defenses might have been available to Local 1475 for it to assert. 15  USCA11 Case: 19-13178 Date Filed: 12/01/2020 Page: 16 of 17 under the past port practice, other employees have received clerk and checker seniority with Local 1475 based on deck and dockmen hours, but that “Mr. Oltmanns has not been afforded that right.” However, nowhere does the proposed complaint allege that such discrimination was intentional. Intention is required for this claim, and without an allegation of intention, the proposed complaint does not adequately allege discrimination in violation of the duty of fair representation. See id. Third, to demonstrate bad faith, a plaintiff must show “fraud, deceitful action or dishonest conduct.” Id. at 299, 91 S. Ct. at 1924 . We are not aware of any published decision from our Court expressly requiring allegations of improper motive under the bad faith prong. But see Jamison v. Air Line Pilots Ass’n, Int’l, 635 F. App’x 647, 653–54 (11th Cir. 2015) (per curiam) (unpublished) (indicating that the bad faith prong requires “improper intent, purpose, or motive”). Nevertheless, all parties here agree that allegations of improper motive are required. The parties rely on cases from outside our circuit, which expressly recognize that point. See, e.g., Spellacy v. Airline Pilots Ass’n-Int’l, 156 F.3d 120 , 126 (2d Cir. 1998) (“A union acts in bad faith when it acts with an improper intent, purpose, or motive. Bad faith encompasses fraud, dishonesty, and other intentionally misleading conduct.” (citations omitted)); Crider v. Spectrulite Consortium, Inc., 130 F.3d 1238 , 1243 (7th Cir. 1997) (“Whereas the arbitrariness 16  USCA11 Case: 19-13178 Date Filed: 12/01/2020 Page: 17 of 17 analysis looks to the objective adequacy of the Union’s conduct, the discrimination and bad faith analyses look to the subjective motivation of the Union officials.”). This seems a good place to start. Beyond our sister circuits, it is clear to us that such a showing is required under Supreme Court precedent and our usual understanding of “bad faith.” All of the examples of bad faith conduct identified in Lockridge (“fraud, deceitful action or dishonest conduct”) appear to include, as an element, improper motive. Lockridge, 403 U.S. at 299 , 91 S. Ct. at 1924 (quotation marks omitted). In any event, the typical understanding of bad faith is “[d]ishonesty of belief, purpose, or motive.” Bad Faith, Black’s Law Dictionary (11th ed. 2019). Here, Mr. Oltmanns fails to allege that Local 1475 acted with any sort of improper motive or purpose. For these reasons, his claim against Local 1475 for breach of its duty of fair representation fails. IV. CONCLUSION The first amended complaint fails to state a hybrid section 301/fair representation claim because it includes no claim alleging that Georgia Stevedore breached any collective bargaining agreement. While the proposed second amended complaint adds that claim, it does not sufficiently allege that Local 1475 breached its duty of fair representation. It therefore fails to allege a viable hybrid section 301/fair representation claim, rendering any amendment futile. We AFFIRM the District Court’s rulings in full. 17

2021-01-26 18:00:38.729365+00

http://www.opn.ca6.uscourts.gov/opinions.pdf/21a0018p-06.pdf

RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 21a0018p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ┐ IN RE: EARL BENARD BLASINGAME; MARGARET │ GOOCH BLASINGAME, │ Debtors. │ ___________________________________________ │ > No. 19-5505 │ CHURCH JOINT VENTURE, L.P., on Behalf of Chapter 7 │ Trustee, │ Plaintiff-Appellant, │ │ │ v. │ │ EARL BENARD BLASINGAME; MARGARET GOOCH │ BLASINGAME; MARTIN A. GRUSIN; MAG │ MANAGEMENT CORPORATION, dba JG Law Firm; │ TOMMY L. FULLEN; LAW OFFICE OF TOMMY L. │ FULLEN, │ Defendants-Appellees. │ ┘ Appeal from the Bankruptcy Appellate Panel of the Sixth Circuit; No. 18-8017—Daniel S. Opperman, Jessica E. Price Smith, and Tracey N. Wise, Bankruptcy Appellate Panel Judges. United States Bankruptcy Court for the Western District of Tennessee at Memphis; Nos. 2:08-bk-28289; 2:14-ap-00429—Jennie D. Latta, Judge. Argued: October 8, 2020 Decided and Filed: January 26, 2021 Before: SUHRHEINRICH, DONALD, and MURPHY, Circuit Judges _________________ COUNSEL ARGUED: Carrie R. McNair, AKERLY LAW PLLC, Coppell, Texas, for Appellant. Michael P. Coury, GLANKLER BROWN, PLLC, Memphis, Tennessee, for Appellees Earl and Margaret  No. 19-5505 In re Blasingame Page 2 Blasingame. ON BRIEF: Carrie R. McNair, Bruce W. Akerly, AKERLY LAW PLLC, Coppell, Texas, for Appellant. Michael P. Coury, GLANKLER BROWN, PLLC, Memphis, Tennessee, for Appellees Earl and Margaret Blasingame. _________________ OPINION _________________ BERNICE BOUIE DONALD, Circuit Judge. Church Joint Venture, L.P. (“CJV”) appeals the Bankruptcy Appellate Panel’s (“BAP”) order affirming the bankruptcy court’s grant of summary judgment to Earl Bernard Blasingame and Margaret Gooch Blasingame (collectively “the Blasingames”). The bankruptcy court determined that a malpractice claim against the attorneys assisting the Blasingames in their bankruptcy filing is property of the Blasingames, and not the bankruptcy estate. We AFFIRM. I. BACKGROUND In July 2008, the Blasingames met with Martin A. Grusin and Tommy L. Fullen (collectively the “filing attorneys”) to discuss the mounting pressure of their financial situation. Grusin was familiar with the Blasingames’ finances prior to their bankruptcy conversations and suggested Fullen, a bankruptcy attorney, to assist in their bankruptcy filing. The Blasingames signed engagement agreements with both Grusin and Fullen. Church Joint Ventures, L.P. v. Blasingame (In re Blasingame), 597 B.R. 614 , 616-17 (B.A.P. 6th Cir. 2019). The Blasingames filed their Chapter 7 bankruptcy petition on August 15, 2008, in the United States Bankruptcy Court for the Western District of Tennessee. Fullen signed the petition as the attorney of record. In re Blasingame, 559 B.R. 692 , 695 (B.A.P. 6th Cir. 2016). Edward L. Montedonico (“the Trustee”) was appointed as Trustee in the case. Id. at 696 . Fullen constructed the bankruptcy schedules, pulling most of the Blasingames’ financial information from Grusin. In their bankruptcy petition, [the Blasingames] claimed less than $6,000 in assets. In fact, as the bankruptcy court later found, the Blasingames failed to disclose millions of dollars in assets that they controlled through a complex web of family trusts, shell companies, and shifting “clearing accounts.” They failed to disclose the life estate they held in their $1.7 million homestead, title to which was held by  No. 19-5505 In re Blasingame Page 3 the Blasingame Family Residence Generation Skipping Trust. They failed to disclose approximately $1.2 million in household goods. They claimed two 1985 Mercedes-Benz vehicles worth $1,100, but failed to disclose their control of a 2008 Mercedes-Benz vehicle belonging to the G.F. Corporation, of which Margaret Blasingame is the president, and for which the sole shareholder is the Blasingame Family Business Investment Trust. They likewise failed to disclose their use of a vehicle belonging to Flozone Services, Inc., a company wholly owned by the Blasingames’ daughter, and of which Benard Blasingame is the CEO. And they managed their liquid assets in unusual ways: Margaret Blasingame, a schoolteacher, routinely deposited her paycheck into a bank account belonging to her son; the Blasingames’ bookkeeper shifted money between this and other “clearing accounts,” each of which went undisclosed. Church Joint Venture, L.P. v. Blasingame (In re Blasingame), 651 F. App’x 386, 387 (6th Cir. 2016). On February 22, 2011, the bankruptcy court granted the Trustee’s motion for summary judgment, denying the Blasingames’ discharge. The bankruptcy court denied the Blasingames’ discharge on the basis that “[t]he petition, schedules, and statement of financial affairs, as initially filed, did not disclose Debtors’ interests in several trusts and corporations, certain household goods, multiple annuities, property held for others, several bank accounts and several liabilities, and an assignment to [] Grusin.” In re Blasingame, 559 B.R. at 695 (abbreviations removed). On July 19, 2011, the bankruptcy court disqualified the filing attorneys from further representation of the Blasingames. Although the Blasingames’ new counsel was able to obtain relief from the summary judgment order, their discharge was once again denied on January 15, 2015, following a trial. On appeal, the BAP affirmed the denial. In re Blasingame, 559 B.R. at 701. As a result of the filing attorneys’ mishandling of the Blasingames’ bankruptcy filing and the Trustee’s belief that the estate lacked the resources to pursue a malpractice claim against them itself, creditor CJV1 obtained derivative standing from the bankruptcy court to file a malpractice claim against the filing attorneys on behalf of the estate. In re Blasingame, 651 F. App’x at 387-88. CJV, in the bankruptcy court, and the Blasingames, in Tennessee state court, filed malpractice complaints against the filing attorneys, both alleging that the filing attorneys’ 1CJV holds 95% of the bankruptcy estate’s unsecured claims. In re Blasingame, 651 F. App’x at 388.  No. 19-5505 In re Blasingame Page 4 negligence resulted in the denial of the Blasingames’ discharge. During this time, the Blasingames also attempted to settle the malpractice claim with the filing attorneys for $1 million and later $1.25 million. Id. The bankruptcy court denied the Blasingames’ motion to approve the settlement because of the overwhelming likelihood that the claim would be successful on the merits. Id. at 388. The Blasingames appealed the denial, but the BAP dismissed their appeal for lack of jurisdiction, holding that the bankruptcy court’s order was not a final, appealable order. Id. The Blasingames further appealed the dismissal, and a panel of this Court similarly dismissed the appeal for lack of jurisdiction. Id. at 389. On January 2, 2018, CJV filed a motion for summary judgment, asserting that the malpractice claims against the filing attorneys are property of the bankruptcy estate, not the Blasingames. The Blasingames responded to the motion, and the bankruptcy court treated the response as a cross-motion for summary judgment, seeking a declaration that the malpractice claims were property of the Blasingames. Applying Tennessee law to determine when the legal malpractice claims accrued, the bankruptcy court denied CJV’s motion for summary judgment and granted the Blasingames’ cross-motion for summary judgment. The bankruptcy court determined that the claims arose post-petition and were therefore the property of the Blasingames. CJV appealed to the BAP. A panel of the BAP unanimously affirmed the bankruptcy court’s order. CJV, 597 B.R. at 616. The panel, relying on this Court’s unpublished decision in Underhill v. Huntington National Bank (In re Underhill), 579 F. App’x 480 (6th Cir. 2014),2 held that the malpractice claims arose post-petition and were thus property of the Blasingames because the only injury—denial of the Blasingames’ discharges—occurred post-petition. CJV, 597 B.R. at 619. CJV now appeals the BAP’s decision affirming the bankruptcy court’s order. II. ANALYSIS Although this Court has frequently encountered the general question posed here— whether contested claims are property of the debtor or the bankruptcy estate—the context of a 2The BAP improperly found that “Underhill controls and binds the bankruptcy court and [the BAP].” CJV, 597 B.R. at 619. Because Underhill is an unpublished decision of this Court, it is not binding authority.  No. 19-5505 In re Blasingame Page 5 legal malpractice claim against the debtors’ filing attorneys seems to be an issue of first impression for this Court. The bankruptcy court applied the “accrual theory,” determining that, because the malpractice claims did not accrue until the Blasingames suffered an injury, they arose post-petition, and are therefore property of the Blasingames. As explained by the bankruptcy court: The [Blasingames] are correct. There can be no more personal damage in connection with a bankruptcy case than the loss of a debtor’s discharge. [CJV] has alleged no other damage that accrued to the bankruptcy estate, and has alleged no damage that accrued to the [Blasingames] prior to the filing of their bankruptcy petition. Neither of the complaints describes a cause of action that could have been pursued by the [Blasingames] prior to the filing of their bankruptcy petition. Church Joint Venture v. Blasingame (In re Blasingame), No. 08-28289-L, 2018 Bankr. LEXIS 1781 , at *17 (W.D. Tenn. May 9, 2018). We review a bankruptcy court’s grant of summary judgment de novo. Trost v. Trost, 735 F. App’x 875, 877 (6th Cir. 2018). “Granting summary judgment is appropriate ‘[w]here the moving party has carried its burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial.’” Meade v. Pension Appeals & Review Comm., 966 F.2d 190 , 192-93 (6th Cir. 1992) (alteration in original) (quoting Gutierrez v. Lynch, 826 F.2d 1534 , 1536 (6th Cir. 1987)); Fed. R. Civ. P. 56(a). All parties agree that summary judgment was proper to determine this issue because there are no genuine issues of material fact. CJV, 597 B.R. at 617. Their disagreement lies exclusively in the legal determination of the ownership of the malpractice claims. We review the bankruptcy court’s conclusions of law de novo. Zingale v. Rabin (In re Zingale), 693 F.3d 704 , 707 (6th Cir. 2012). “The BAP’s decision is not binding on this [C]ourt.” Id. Section 541(a) of the Bankruptcy Code provides that, barring a few exceptions not relevant here, “all legal or equitable interests of the debtor in property as of the commencement of the case” are property of the bankruptcy estate. 11 U.S.C. § 541 (a)(1). “[E]very conceivable interest of the debtor, future, nonpossessory, contingent, speculative, and derivative, is within the  No. 19-5505 In re Blasingame Page 6 reach of § 541.” Tyler v. DH Capital Mgmt., Inc., 736 F.3d 455 , 461 (6th Cir. 2013) (alteration in original) (quoting Azbill v. Kendrick (In re Azbill), No. 06-8074, 2008 Bankr. LEXIS 527 , at *19-20 (B.A.P. 6th Cir. Mar. 11, 2008)). While § 541 dictates what interests are property of the estate pursuant to federal bankruptcy law, the “nature and extent of [the] property rights . . . are determined by the ‘underlying [state] substantive law.’” Id. (quoting Raleigh v. Ill. Dep’t of Rev., 530 U.S. 15 , 20 (2000)). “Unless some federal interest requires a different result, there is no reason why such interest should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding.” Butner v. United States, 440 U.S. 48 , 55 (1979). To make out a prima facie claim of legal malpractice under Tennessee law, a plaintiff must show the existence of five elements: (1) the attorney owed a duty to the plaintiff; (2) the attorney breached that duty; (3) the plaintiff suffered damages; (4) the breach was the but for cause of the plaintiff’s damages; and (5) the breach was the proximate cause of the plaintiff’s damages. Gibson v. Trant, 58 S.W.3d 103 , 108 (Tenn. 2001). To analyze the nature and extent of the rights in the legal malpractice claims, we must determine which elements of the claims were satisfied as of the commencement of the bankruptcy filing. CJV contends, and the Blasingames do not dispute, that the filing attorneys owed the Blasingames duties with respect to the process of filing for bankruptcy and that the filing attorneys breached those duties when they failed to properly investigate and draft the Blasingames’ schedules and statement of financial affairs prior to filing the Blasingames’ bankruptcy petition. The parties do, of course, dispute whether the damages element was met pre-petition,3 or, alternatively, whether that is a requirement at all. The Blasingames assert that both the Trustee’s malpractice complaint and their own malpractice complaint filed against the filing attorneys allege that the sole damages caused by the filing attorneys’ breach was the denial of the Blasingames’ discharge, which is undisputedly a post-petition event. Appellee’s Br. at 8-9. CJV, on the other hand, points to two possible events which damaged the Blasingames pre- petition: first, the advice to file for bankruptcy in the first place because bankruptcy may not 3Only the damages element remains because the causation elements are contingent on, and can be satisfied simultaneously with, the existence of damages.  No. 19-5505 In re Blasingame Page 7 have been the Blasingames’ best option; and second, the negligent construction of their bankruptcy petition. Appellant’s Br. at 25. A legal malpractice claim accrues as of the date on which the negligence became irremediable. Ameraccount Club, Inc. v. Hill, 617 S.W.2d 876 , 879 (Tenn. 1981) (citing Biberstine v. Woodworth, 278 N.W.2d 41 , 42 (Mich. 1979) (holding that an attorney’s negligent failure to properly schedule a client’s debt in a petition for bankruptcy became a viable malpractice claim at the time of discharge because the petition was amendable up until that point)). With respect to each asserted breach, the ultimate damage came once the filing attorneys filed the bankruptcy petition, and not prior to the commencement of the bankruptcy case because, until that time, the Blasingames need not have continued on the path towards filing for bankruptcy at all. In the alternative, however, CJV points to the real crux of the issue: whether, even assuming that all damages occurred post-petition, the filing attorneys’ underlying pre-petition conduct causes the claim to be “sufficiently rooted in the [debtor’s] pre-bankruptcy past” as to make it property of the estate. Appellant’s Br. at 26-31 (quoting Segal v. Rochelle, 382 U.S. 375 , 380 (1966)). This language has a long and disputed history. In Segal, the debtors and their business partnership filed their bankruptcy petitions in 1961. 382 U.S. at 376 . The following year, the trustee of the bankruptcy estate obtained loss- carryback tax refunds for losses the partnership suffered during 1961 (prior to filing their petitions). Id. These losses were carried back to 1959 and 1960 to offset net income on which the debtors had already paid taxes. Id. The Supreme Court held that the “loss-carryback refund claim . . . [was] sufficiently rooted in the prebankruptcy past and so little entangled with the [debtors’] ability to make an unencumbered fresh start that it should be regarded as ‘property’ under § 70a(5) [of the Bankruptcy Act].” Id. at 380. Segal was based on § 70a(5) of the 1898 Bankruptcy Act, which vested to the trustee of the bankruptcy estate “property which prior to the filing of the petition [the debtor] could by any means have transferred or which might have been levied upon and sold under judicial process against [the debtor].” As noted above, the current Bankruptcy Code, enacted in 1978 by § 101 of  No. 19-5505 In re Blasingame Page 8 the Bankruptcy Reform Act, includes a different provision regarding the property of the estate— “all legal or equitable interests of the debtor in property as of the commencement of the case” regardless of “wherever located and by whomever held.” 11 U.S.C. § 541 (a). Although some circuits have held that the language in § 541 codified Segal’s specific holding by making the location of the claim at issue irrelevant,4 other circuits have questioned whether the “rooted in the past” concept survived the Bankruptcy Code’s enactment.5 This Court has favorably recited Segal, albeit sparingly. See e.g., Lawrence v. Commonwealth of Ky. Transp. Cabinet (In re Shelbyville Rd. Shoppes, LLC), 775 F.3d 789 , 796 (6th Cir. 2015) (applying Segal’s “sufficiently rooted” test to determine whether a deposit was property of the bankruptcy estate). There is little agreement, both inter- and intra-circuit, on how courts should apply the Segal test when dealing with a claim for legal malpractice against the filing attorneys: Some courts have applied the test expansively, including contingent and unripe claims as property of the estate. See, e.g., Mueller, No. 06-8053, 2007 Bankr. Lexis 1523, at *8 (B.A.P. 6th Cir. May 10, 2007) (holding that a legal-malpractice claim became part of estate at the time of negligence, not when damages are incurred). Others have treated the test as equivalent to the determination of when the cause of action accrues under the substantive law. See, e.g., Witko v. Menotte (In re Witko), 374 F.3d 1040 , 1044 (11th Cir. 2004) (holding that a legal- malpractice claim was not part of the estate since harm from the attorney’s pre- petition failures did not occur until after filing the petition). 4 See Chartschlaa v. Nationwide Mut. Ins. Co., 538 F.3d 116 , 122 (2d Cir. 2008) (applying Segal’s “sufficiently rooted” test); Beaman v. Shearin (In re Shearin), 224 F.3d 346 , 351 (4th Cir. 2000) (affirming the bankruptcy court’s use of Segal’s “sufficiently rooted” test); In re Barowsky, 946 F.2d 1516 , 1518-19 (10th Cir. 1991) (finding that Congress affirmatively adopted Segal’s analysis of property); In re Ryerson, 739 F.2d 1423 , 1426 (9th Cir. 1984) (“The Code follows Segal insofar as it includes after-acquired property ‘sufficiently rooted in the prebankruptcy past’ but eliminates the requirement that it not be entangled with the debtor’s ability to make a fresh start.”). 5 See Bracewell v. Kelley (In re Bracewell), 454 F.3d 1234 , 1242 (11th Cir. 2006) (“The Segal decision told us how to define property under the old bankruptcy code, before it was amended in 1978 to include an explicit definition of property. We will not attribute to the Supreme Court an intent to construe legislative language that it had not seen and which would not even exist for another dozen years.”); Burgess v. Sikes (In re Burgess), 438 F.3d 493 , 498 (5th Cir. 2006) (“Segal’s ‘sufficiently rooted’ test did not survive the enactment of the Bankruptcy Code.”); Drewes v. Vote (In re Vote), 276 F.3d 1024 , 1026 (8th Cir. 2002) (finding that applying the “sufficiently rooted” test to the claim at hand would broaden the scope of § 541 beyond claims which exist at the commencement of the case).  No. 19-5505 In re Blasingame Page 9 Tyler, 736 F.3d at 462. In Tyler, we declined to answer the question before this Court now: “whether a cause of action, one or more of whose elements have not been satisfied at time of the petition, may become pre-petition property.” Id. at 463. Prior holdings have, however, provided some insights into the boundaries at play. Id. at 462. First, mere conduct is insufficient to root a claim in the past; a pre-petition violation is required. Second, all causes of action that could have been brought pre-petition are property of the estate, whether or not the debtors knew of the cause of action when they filed the petition. Id. Although the second instruction is not relevant here because a malpractice claim could not have been brought until the Blasingames suffered damages—the denial of their discharge—the first instruction guides our inquiry. Unfortunately, it does so only through another question: Does the “violation” occur when the duty is breached or when the damage is incurred? Unlike in Tyler, in which the property at issue was an action under the Fair Debt Collection Practices Act, it is not so clear here when the malpractice violation occurred. Id. at 463-64. We must look to Tennessee law to determine when acts constituting malpractice become a violation. Tennessee used to follow the traditional common law rule that a claim accrues upon the wrongful act, not when damages are incurred. Albert v. Sherman, 67 S.W.2d 140 , 141 (Tenn. 1934). But the Tennessee Supreme Court overruled the traditional common law rule, finding that a “cause of action accrues . . . when the patient discovers . . . or should have discovered the resulting injury.” Teeters v. Currey, 518 S.W.2d 512 , 517 (Tenn. 1974) (applying the rule in the context of a medical malpractice claim); see Smith v. Tenn. Nat’l Guard, 551 S.W.3d 702 , 709- 10 (Tenn. 2018) (reaffirming Teeters and explaining that its holding has since been applied to many other types of claims); Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436 , 458 (Tenn. 2012). Although not in the bankruptcy context, we have applied Teeters to malpractice claims against attorneys as well. For example, in Woodruff v. Tomlin, this Court held that, with respect to plaintiffs’ malpractice claims against attorneys hired to pursue their claims for damages resulting from personal injuries, “no cause of action accrued until after the plaintiffs discovered or could have reasonably discovered the malpractice and until after the judgment . . . had become final.” 511 F.2d 1019 , 1021 (6th Cir. 1975).  No. 19-5505 In re Blasingame Page 10 True enough, it is not of great consequence when, under Tennessee law, the malpractice claims became actionable because federal law determines when a property interest becomes part of the bankruptcy estate. In re Underhill, 579 F. App’x 480, 484 (6th Cir. 2014) (Donald, J., dissenting); In re Terwilliger’s Catering Plus, Inc., 911 F.2d 1168 , 1172 (6th Cir. 1990). Thus, while it remains difficult to determine whether, if ever, an unaccrued claim can be “sufficiently rooted” in a debtor’s past, it is clear that at the very least there must be some awareness of the claim in order for it to exist as a legal interest and be properly included in the debtor’s bankruptcy petition. See In re Underhill, 579 F. App’x at 484 (Donald, J., dissenting) (contending that the debtors’ tortious interference claim was part of the bankruptcy estate despite the fact that the claim had not accrued under state law because violative conduct occurred prior to the petition and the debtors were aware of it prior to the petition). Tennessee courts have likewise applied this same reasoning to their accrual rule, seeking to ameliorate the unjust results caused by treating a claim as accrued prior to a plaintiff’s knowledge of the injury. Smith, 551 S.W.3d at 709-10. Applying that test here, the malpractice cause of action could not have become a legal interest under Tennessee law until after the judgment denying the Blasingames’ discharge was entered because the Blasingames were unaware of the filing attorneys’ conduct, which allegedly constituted malpractice. This result is in accord with our Court’s previous guidance. Here, the malpractice claims could not be more entangled with the Blasingames’ ability to make a fresh start because they directly resulted in the denial of their discharge. Thus, at the time of the Blasingames’ filing, the malpractice claims were not a legal interest under Tennessee law such that they could be considered as property of the bankruptcy estate under federal law. In the alternative, CJV contends that, if this Court finds that even some of the malpractice claims arose pre-petition, “the Bankruptcy Court should have considered splitting the claims into two separate and distinct causes of action – one in the pre-petition period and one in the post- petition period.” Appellant’s Br. at 39. Because, as determined above, any legal interest in the malpractice claims arose post-petition, there is no need to divide them. Furthermore, CJV fails to offer any case law which endorses their proposal in the context of determining whether a property interest arose pre- or post-petition. No. 19-5505 In re Blasingame Page 11 III. CONCLUSION For the foregoing reasons, we AFFIRM the BAP’s holding.

2021-01-26 18:00:39.547048+00

http://www.opn.ca6.uscourts.gov/opinions.pdf/21a0052n-06.pdf

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0052n.06 Case No. 20-2252 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED CANDISE HOOKER, ) Jan 26, 2021 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF WANIGAS CREDIT UNION, ) MICHIGAN ) Defendant-Appellant. ) OPINION ) BEFORE: CLAY, GIBBONS, and NALBANDIAN, Circuit Judges. NALBANDIAN, Circuit Judge. Wanigas Credit Union garnished $884.13 from Candise Hooker’s wages during the ninety-day preference period before Hooker filed for bankruptcy. Hooker’s employer sent the money to Wanigas’s law firm, Shek Law Offices, which retained $452.60 under a contingency-fee agreement between Shek and Wanigas before sending the remaining $431.53 to Wanigas. After filing for Chapter 7 bankruptcy, Hooker demanded that Wanigas return the garnished wages as a preferential transfer under 11 U.S.C. § 547 (b)(1). But Wanigas only returned the $431.53 it had received, so Hooker sought the remaining $452.60 in adversary proceedings in bankruptcy court. Wanigas moved for summary judgment, asserting that the unpaid balance did not qualify as an avoidable preferential transfer under § 547 because the money never landed in Wanigas’s coffers and is also subject to an attorney-charging lien. The court denied the motion. No. 20-2252, Hooker v. Wanigas Credit Union Wanigas filed an interlocutory appeal in district court. The district court exercised its discretion to hear the interlocutory appeal under 28 U.S.C. § 158 (a) and affirmed.1 On appeal to this court, Wanigas argues that the lower courts erred because the transfer to Shek does not qualify as a preference under 11 U.S.C. § 547 (b)(1) and is also subject to an attorney-charging lien. On appeals like this one, we do not review the district court’s decision. Rather, we review the bankruptcy court’s decision, reviewing factual findings for clear error and legal conclusions de novo. In re Flo-Lizer, Inc., 946 F.2d 1237 , 1240 (6th Cir. 1991); In re AMC Mortg. Co., Inc., 213 F.3d 917 , 920 (6th Cir. 2000). Because the bankruptcy court correctly rejected Wanigas’s arguments and denied its motion for summary judgment, we AFFIRM and REMAND for further proceedings consistent with this opinion. I. Under 11 U.S.C. § 547 (b), a bankruptcy “trustee may . . . avoid” preferential transfers— “transfer[s] of an interest of the debtor in property” that satisfy the five requirements listed in § 547(b). Wanigas argues that the bankruptcy and district courts erred because the $452.60 1 Under 28 U.S.C. § 158 (a), a party may take an appeal from an interlocutory order, like the denial of summary judgment, only “with leave of the [district] court.” The district court’s jurisdiction hinges on its decision to grant or deny leave to appeal. See id. Parties usually file a “motion for leave” under Fed. R. Bankr. P. 8004, seeking leave to appeal. But “[i]f an appellant timely files a notice of appeal under this rule but does not include a motion for leave, the district court . . . may order the appellant to file a motion for leave, or treat the notice of appeal as a motion for leave and either grant or deny it.” Id. 8004 (d). Wanigas did not file a motion for leave to appeal the interlocutory order in district court. Rather, it simply filed a notice of appeal. But the district court did not “treat the notice of appeal as a motion for leave.” Id. Rather, it treated the bankruptcy court’s order as a final order when it concluded it had jurisdiction over the matter because “[f]inal orders of a bankruptcy court are appealable to a federal district court under 28 U.S.C. § 158 (a).” (R. 8, PageID 129.) Because this technicality affected jurisdiction, we dismissed the case and remanded for the district court to determine whether to grant or withhold its consent under 28 U.S.C. § 158 (a). The district court granted leave to appeal, curing the jurisdictional defect and paving the way for this panel to now address the merits. 2 No. 20-2252, Hooker v. Wanigas Credit Union transfer to Shek does not satisfy two of the requirements: 1) that the transfer be “to or for the benefit of a creditor,” and 2) that the transfer “enables [the] creditor to receive more than [it] would receive” as a creditor in bankruptcy proceedings. Id. Her arguments fail for three reasons. First, the transfer at issue was “to” a creditor under 11 U.S.C. § 547 (b) because Shek received the $884.13 transfer in its capacity as Wanigas’s agent. Agents stand in the place of their principals. See RESTATEMENT (THIRD) OF AGENCY § 1.01 (AM. L. INST. 2006); In re Estate of Capuzzi, 684 N.W.2d 677 , 679 (Mich. 2004) (“[T]he agent stands in the shoes of the principal.”). And Shek acted as Wanigas’s agent when it garnished Hooker’s wages. It was Wanigas, not Shek, that obtained a default judgment against Hooker. And Shek only filed the Writ of Periodic Garnishment to collect on that judgment and received payments made payable to the law firm on behalf of Wanigas. Had that not been the case, the payments would not have decreased the amount Hooker owed to Wanigas, her judgment creditor—a fact Wanigas does not dispute. Shek was merely the conduit through which Hooker’s employer transferred money to Shek’s principal, Wanigas; the transfer was “to” a creditor. See In re Robert Plan of New York Corp., 456 B.R. 150 , 156 (Bankr. E.D.N.Y. 2011) (holding that a creditor’s law firm was merely a “conduit” so transfers were made directly “to” the creditor when they were deposited in the law firm’s escrow account); cf. Fitch v. Kentucky-Tennessee Light Power Co., 136 F.2d 12 , 16 (6th Cir. 1943) (“Payment . . . to an agent for the benefit of his principal, is the same as payment to the principal.”). Second, the entire $884.13 transfer was also “for” Wanigas’s benefit. For is “a function word to indicate purpose.” For, MERRIAM-WEBSTER, https://www.merriam- webster.com/dictionary/for. And because “[s]ection 547 focuses on the purpose and effect of the transaction,” other factors, including the “manner in which it is accomplished,”are less important. Matter of Darke, 18 B.R. 510 , 513 (Bankr. E.D. Mich. 1982) (citation omitted). Although the 3 No. 20-2252, Hooker v. Wanigas Credit Union garnishment writ directed Hooker’s employer to send the garnished wages to Wanigas’s attorney rather than Wanigas, the purpose of the transfer was clearly not to benefit Wanigas’s law firm; it was to satisfy Wanigas’s judgment against Hooker. And because payment to Shek discharged Hooker’s debt to Wanigas, the payment was for Wanigas’s benefit under 11 U.S.C. § 547 (b). See In re C-L Cartage Co., Inc., 899 F.2d 1490 , 1493 (6th Cir. 1990) (holding that payments to a third- party that discharged a debtor’s obligation to creditors were “‘to or for the benefit of a creditor’ within the meaning of section 547(b)(1)”). It is irrelevant that Shek retained a portion of the funds under its agreement with Wanigas. No matter where the money was ultimately deposited, the transfer’s purpose was to satisfy Wanigas’s judgment against Hooker. So it was a transfer “for” Wanigas’s benefit. In re Spinnaker Indus., Inc., 328 B.R. 755 , 764–65 (Bankr. S.D. Ohio 2005) (ruling that because a creditor’s law firm “accepted the check for the benefit of” the creditor when it received money for its client, the transfer was preferential even though the attorneys retained a portion of the payment in fees); see In re Robert Plan, 456 B.R. at 156 (holding that transfers to a creditor through its law firm were preferential, including portions retained by firm under fee agreement). Wanigas tries to avoid this conclusion by reading a debtor-intent requirement into the word “for” under § 547(b)(1). Under its reading, the “for the benefit of the creditor” language only applies to cases in which a debtor subjectively intends to benefit a creditor. And because Shek garnished Hooker’s wages, Hooker could not have possibly intended anything. It finds support for its argument in In re Sheppard, 521 B.R. 599 (Bankr. E.D. Mich. 2014), which held that “[i]n order for a transfer to be ‘for the benefit of’ a particular creditor within the meaning of § 547(b)(1), the Debtor must have intended the transfer to benefit that creditor.” Id. at 603. Because an involuntary transfer requires no debtor intent, Sheppard also held that the only involuntary 4 No. 20-2252, Hooker v. Wanigas Credit Union transfers recoverable as preferences were those actually received by the creditor under the word “to”; the “for the benefit” language was off the table. Id. The Sheppard rule is inconsistent with the statute. Section 547(b)(1) does not require a particular state of mind on the part of the debtor. The statute merely requires that a “transfer of an interest of the debtor” be “for the benefit of the creditor.” 11 U.S.C. § 547 (b)(1). That language requires analyzing the reasons underlying the transfer—the purpose. But it does not require an inquiry into the debtor’s subjective intent. Indeed, section 547(b) does not require that the debtor set the transfer in motion. It just requires a “transfer of an interest of the debtor.” Id. And the bankruptcy code defines “transfer” broadly to encompass both voluntary and involuntary transfers. 11 U.S.C. § 101 (54). So Wanigas’s argument fails under the statute. The transfer here was a transfer “for the benefit of a creditor” under section 547(b). Third, we are unpersuaded by Wanigas’s assertion that Hooker is not entitled to the remaining $452.60 because transferring that amount to Shek did not “enable a creditor to receive more than the creditor would receive” in bankruptcy proceedings. Wanigas’s argument on this point is simple. It claims that it never received the $452.60 retained by Shek, so the transfer benefited Shek, not Wanigas. But this argument fails to appreciate that the entire $884.13 was transferred “to and for the benefit” of Wanigas when Shek garnished the funds on Wanigas’s behalf. It received the money through its agent. And to/for discussion aside, the transfer, moreover, benefitted Wanigas by satisfying its obligations to Shek under their fee agreement, which required payment upon collection.2 2 Shek collected on behalf of Wanigas, so Wanigas owed Shek. It is true, of course, that barring some unforeseen development on remand, the bankruptcy court will likely order Wanigas to return the remaining $452.60 collected. At that point, this fees benefit will no longer exist. But unwinding the collection may also erase Wanigas’s obligation to Shek, so Wanigas may have a 5 No. 20-2252, Hooker v. Wanigas Credit Union Wanigas cannot sidestep avoidance simply because its agent received a transfer on Wanigas’s behalf and then retained a portion in satisfaction of Wanigas’s obligation to it. As Wanigas itself acknowledged at oral argument, if it had received the unreturned balance directly from Hooker and then paid Shek, the entire $884.13 would be avoidable, meaning that Wanigas would have been required to return the whole amount to the bankruptcy trustee. The only difference here is that Wanigas directed its agent to divide its funds to satisfy its debts before forwarding the balance to Wanigas. The bankruptcy code does not allow creditors to avoid its sweep so easily. Wanigas’s argument fails. II. Wanigas also argues that it should not have to return the missing $452.60 because that amount was subject to a valid attorney’s charging lien3 under Michigan law that attached before the preference period. But the existence of a lien against Shek’s client’s recovery from Hooker is beside the point because Shek is Wanigas’s creditor, not Hooker’s. Except in circumstances not applicable here, “an attorney’s lien is not enforceable against a third party.”4 Doxtader v. Sivertsen, 455 N.W.2d 437 , 439 (Mich. App. 1990). “It is not a right intended to protect the client from his other creditors . . . .” Kysor Indus. Corp. v. D.M. Liquidating Co., 161 N.W.2d 452 , 456 (Mich. App. 1968). claim against Shek. That matter, however, is not before us today. And regardless, Wanigas received the funds when Hooker’s employer transferred them to Wanigas’s agent. 3 A charging lien is an equitable right entitling attorneys to “fees and costs due for services secured out of the judgment or recovery in a particular suit.” George v. Sandor M. Gelman, P.C., 506 N.W.2d 583 , 584 (Mich. App. 1993). 4 “[A] charging lien can be enforced against third parties when the third party has notice of the lien. But that principle merely states a fundamental principle of charging liens, that when a party holds monies owing to a plaintiff, and has notice of the attorney’s lien, it must recognize that lien prior to making a payment to the plaintiff.” Estate of Tams by Findling v. Auto Club Ins. Ass’n, No. 332558, 2018 WL 340923 , at *3 (Mich. Ct. App. Jan. 9, 2018) (Murray, P.J., concurring) (citation omitted). 6 No. 20-2252, Hooker v. Wanigas Credit Union Further, § 547(b) turns back the clock on preferential transfers like the one here, so assuming Hooker prevails on remand, Wanigas never recovered anything from Hooker. Because attorney-charging liens attach to the “funds or a money judgment” “recovered,” George v. Sandor M. Gelman, P.C., 506 N.W.2d 583 , 585 (Mich. App. 1993) (emphasis added), § 547(b) avoidance here renders the lien meaningless at this stage (Wanigas may recover something as a bankruptcy creditor). In the end, Wanigas never recovered if Hooker avoids the transfer. Consequently, the lower court did not err in determining that Shek’s charging lien does not entitle Wanigas to summary judgment. III. The bankruptcy court did not err when it denied Wanigas’s motion for summary judgment. Wanigas fails to show that the transfer to Shek on behalf of Wanigas was not a transfer “to or for the benefit of a creditor,” and Shek’s charging lien is irrelevant. We AFFIRM and REMAND for further proceedings in bankruptcy court. 7

2020-11-21 02:53:41.33067+00

JORAM RAUCHWERGER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Rauchwerger v. Commissioner Docket No. 6924-78. United States Tax Court T.C. Memo 1981-56; 1981 Tax Ct. Memo LEXIS 690; 41 T.C.M. (CCH) 852; T.C.M. (RIA) 81056; February 11, 1981. Joram Rauchwerger, pro se. Robyn R. Jones, for the respondent. GOFFE MEMORANDUM FINDINGS OF FACT AND OPINION GOFFE, Judge: The Commissioner determined a deficiency of $ 884 in the Federal income tax of petitioner for his taxable year 1974. The issue is whether petitioner had a "tax home" in 1974 when he incurred traveling expenses pursuant to his trade or business of selling portraits. FINDINGS OF FACT At the time the petition herein was filed, petitioner resided at Tulsa, Oklahoma. Petitioner was employed by Chromalloy Photographic Industries, Inc. (Chromalloy) from January 4, 1974, to August 24, 1974, as a "portrait sales consultant." His employment with Chromalloy required him to travel on a predetermined schedule set by Chromalloy to department stores throughout the continental United States*691 in order to deliver pre-paid color portraits to customers and attempt to sell them additional portraits. From January 4 until August 24, 1974, petitioner visited fifty cities assigned to him by Chromalloy located in fifteen different states. Typically, he visited a city for three to five days. He would then travel to the next city where he would again spend several days on business. He maintained this schedule continuously from January 4 to August 24, 1974, with the exception of one week of vacation. Chromalloy's corporate headquarters are located in St. Louis, Missouri. During 1974, petitioner worked at a Sears and Roebuck department store in the St. Louis, Missouri, area from June 20 to June 27. Petitioner was not present in St. Louis at any other time during 1974. While employed by Chromalloy in 1974, petitioner did not work at any location in Tulsa, Oklahoma. From July 7, 1974, to July 14, 1974, he vacationed in Tulsa. While there, he stayed at the residence of his father, where he stored his belongings during his employment with Chromalloy. Petitioner did not pay or incur any rent or other expense for the use of his father's home in 1974 either for storage of his belongings*692 or for his lodging. Petitioner used his father's residence in Tulsa as his mailing address in 1974 while working for Chromalloy. While he was traveling on business, he also received mail every Monday morning at whatever department store to which he was assigned. For the year 1974, petitioner claimed the following expenses in connection with his travel for Chromalloy on his 1974 Federal income tax return: Lodging$ 1,931 Meals2,016 Tips & Baggage Charges150 Laundry & Cleaning120 $ 4,217 The Commissioner disallowed this deduction in full and further determined that petitioner received as gasoline expense reimbursement $ 32.93 more than he reported. Petitioner does not dispute the latter determination. On May 11, 1978, we entered our decision in Rauchwerger v. Commissioner,T.C. Memo 1978-177">T.C. Memo. 1978-177, a proceeding relating to petitioner's 1973 taxable year and containing an issue similar to the one now before us. OPINION Section 162 of the Internal Revenue Code of 1954 provides: SEC. 162. TRADE OR BUSINESS EXPENSES. (a) IN GENERAL.--There shall be allowed as a deduction all the ordinary and necessary expenses*693 paid or incurred during the taxable year in carrying on any trade or business, including-- (2) traveling expenses (including amounts expended for meals and lodging other than amounts which are lavish or extravagant under the circumstances) while away from home in the pursuit of a trade or business; It is somewhat tautological to state that to be "away from home," one must have a "home" to be "away from." As a general rule, a taxpayer's principal place of business is his "tax home." Kroll v. Commissioner,49 T.C. 557">49 T.C. 557 (1968). An employee without a principal place of business may treat a permanent place of residence at which he incurs substantial, continuing living expenses as his tax home. Spson v. Commissioner,49 T.C. 636">49 T.C. 636, 640 (1968). However, where the taxpayer has neither a principal place of business nor a permanent residence, he has no tax home from which he can be away. His home is wherever he happens to be. Rosenspan v. United States,438 F.2d 905">438 F.2d 905 (2d Cir. 1971), cert. denied 404 U.S. 864">404 U.S. 864 (1971), rehearing denied 404U.S. 959 (1971). In the case before us petitioner has failed to demonstrate that he had a*694 permanent tax home from which to be away in 1974. Chromalloy's headquarters in St. Louis, Missouri, does not qualify as petitioner's principal place of business. He visited St. Louis for only one week in 1974 while working at a Sears store there. Petitioner's business was transacted "on the road" in the fifty cities and fifteen states he visited during 1974. Nor is Tulsa, Oklahoma, petitioner's tax home. He maintained no permanent residence nor incurred substantial living expenses there. He was present there only for a one-week vacation while employed by Chromalloy in 1974. He did not have to pay for the use of his father's home there. We are unable to conclude that he had sufficient continuing contacts with Tulsa for it to qualify as his tax home in 1974. Because petitioner had no tax home while working for Chromalloy in 1974, we must sustain the Commissioner's disallowance of his traveling expense deduction. Respondent argues that our decision in Rauchwerger v. Commissioner,T.C. Memo. 1978-177, collaterally estops petitioner from contesting the validity of respondent's determination. In view of our holding above, we need not decide this issue. *695 Decision will be entered for the respondent.

2021-01-26 18:00:45.696573+00

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/26/19-15672.pdf

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT GREGORY WOCHOS, Individually and No. 19-15672 on Behalf of All Others Similarly Situated, D.C. No. Plaintiff, 3:17-cv-05828- CRB and KURT FRIEDMAN; UPPILI OPINION SRINIVASAN, Individually and on Behalf of All Others Similarly Situated Plaintiffs-Appellants, v. TESLA, INC.; ELON MUSK; and DEEPAK AHUJA, Defendants-Appellees. Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding Argued and Submitted April 30, 2020 San Francisco, California Filed January 26, 2021 2 FRIEDMAN V. TESLA Before: J. Clifford Wallace, Susan P. Graber, and Daniel P. Collins, Circuit Judges. Opinion by Judge Collins SUMMARY * Securities Fraud The panel affirmed the district court’s dismissal with prejudice of a putative securities fraud class action brought under § 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5, alleging that Tesla, Inc., and two of its officers misled the investing public during 2017 about Tesla’s progress in building production capacity for the Model 3, its first mass-market electric vehicle. The panel held that, to the limited extent that the specific statements challenged in plaintiffs’ operative second amended complaint were not protected by the “safe harbor” for forward-looking statements in the Private Securities Litigation Reform Act, plaintiffs failed adequately to plead falsity. The panel held that plaintiffs’ proposal to amend the complaint further, to challenge an additional statement, failed for lack of the requisite loss causation. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  FRIEDMAN V. TESLA 3 COUNSEL Jacob A. Goldberg (argued) and Gonen Haklay, The Rosen Law Firm P.A., Jenkintown, Pennsylvania; Laurence M. Rosen, The Rosen Law Firm P.A., Los Angeles, California; for Plaintiffs-Appellants. Dean S. Kristy (argued) and Jennifer Bretan, Fenwick & West LLP, San Francisco, California; Alison Jordan, Fenwick & West LLP, Mountain View, California; for Defendants-Appellees. OPINION COLLINS, Circuit Judge: Plaintiffs Kurt Friedman and Uppili Srinivasan, on behalf of a putative class of shareholders, allege that Tesla, Inc. and two of its officers, Chairman and Chief Executive Officer Elon Musk and Chief Financial Officer Deepak Ahuja, (collectively, “Defendants”) misled the investing public during 2017 about Tesla’s progress in building production capacity for the Model 3, its first mass-market electric vehicle. We conclude that, to the limited extent that the specific statements challenged in Plaintiffs’ operative Second Amended Complaint are not protected by the “safe harbor” for forward-looking statements in the Private Securities Litigation Reform Act (“PSLRA”), see 15 U.S.C. § 78u-5(c), Plaintiffs have failed adequately to plead falsity. We also hold that Plaintiffs’ proposal to amend the complaint further, to challenge an additional statement, fails for lack of the requisite loss causation. We therefore affirm the district court’s dismissal of this action with prejudice. 4 FRIEDMAN V. TESLA I When reviewing a motion to dismiss, we accept Plaintiffs’ well-pleaded factual allegations as true, keeping in mind the heightened pleading standards established in the PSLRA. Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981 , 989–91 (9th Cir. 2009); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 , 321–23 (2007). We may also consider “materials incorporated into the complaint by reference” and any “matters of which we may take judicial notice.” Zucco Partners, 552 F.3d at 989 . A As of 2016, Tesla remained a “niche” carmaker, delivering only 76,000 electric vehicles a year. All of these were luxury vehicles with a suggested retail price of over $74,000. For years, though, Musk had been hoping to expand Tesla’s production into mass-market electric vehicles, and the fruit of those efforts was the “Model 3.” In 2016, Tesla first announced concrete plans to build the Model 3, which was envisioned as a sedan with a recommended retail price starting at $35,000. At such prices, Musk anticipated selling hundreds of thousands of cars a year by 2018. To achieve this scale of production, Tesla planned to develop fully automated production lines for the Model 3 at a factory in Fremont, California, and to produce the vehicle’s battery in-house at a factory in Reno, Nevada, called “Gigafactory 1.” In a May 2017 quarterly report filed with the U.S. Securities and Exchange Commission (“SEC”), Tesla described its production goals for the Model 3, but it warned that the production of the vehicle might not be a seamless process: “We have experienced in the past . . . significant delays or other complications in the design, manufacture, launch and production ramp of new vehicles and other products,” and  FRIEDMAN V. TESLA 5 “may also experience similar delays or other complications in bringing to market and ramping production of new vehicles, such as Model 3.” Tesla further cautioned that it had “no experience to date in manufacturing vehicles” at such a high volume and that its “ability to achieve these plans” depended on a number of risk factors. B Plaintiffs’ claims in this case are based on a number of statements Tesla made to investors between May 3, 2017 and November 1, 2017, during the ramp-up to mass production of the Model 3. 1 Plaintiffs’ theory is that, during this “Class Period,” Tesla announced Model 3 production goals for the end of 2017 that it knew it would not be able to achieve, and it repeatedly reaffirmed that it was on track to reach those targets, even as the end-of-the-year deadline drew closer and as delays grew increasingly significant. Plaintiffs start with May 3, 2017, because on that date Tesla publicly affirmed that its 2017 production goal was to manufacture 5,000 Model 3s per week. Specifically, Plaintiffs stated, in a Form 8-K filed that day, that “preparations at our production facilities are on track to support the ramp of Model 3 production to 5,000 vehicles per week at some point in 2017.” The Class Period ends on November 1, 2017, because that is the day Tesla publicly admitted that it would 1 Most of the alleged misrepresentations and omissions stem either from Tesla’s disclosures of financial data and strategic risks in its various filings with the SEC or from statements made during “earnings calls.” The various SEC filings at issue involved reports that, as a public company, Tesla was required to make at periodic intervals: for example, Form 10-Ks are required annually, Form 10-Qs are required quarterly, and Form 8-Ks are required when specified events occur. The “earnings calls” at issue here were conference calls to investors and investment analysts that were typically conducted on the day of an SEC filing. 6 FRIEDMAN V. TESLA not, in fact, be able to produce 5,000 vehicles per week by the end of 2017. Plaintiffs allege that, long before the May 3, 2017 announcement, Defendants were aware that, due to a variety of logistical issues, producing 5,000 vehicles a week in 2017 was unattainable. Plaintiffs allege that Former Employee (“FE”) 1, who was then the Fremont plant’s director of manufacturing, told Musk at a meeting in late April or early May 2016 that “there was zero chance that the plant would be able to produce 5,000 Model 3s per week by the end of 2017.” FE1 “told Musk directly at the meeting that the start of manufacturing would be at least 6 months later than July 2017, i.e., in 2018.” At the end of the meeting, “Musk told FE1 that he should look for new employment,” and FE1 resigned shortly thereafter. The vice president of manufacturing likewise told Musk around the same time that Tesla would never be able to produce 5,000 Model 3s by the end of 2017, and Musk responded by forcing him out of the company in May 2016. The complaint alleges that, as 2017 progressed, Tesla struggled to build the automatic assembly line that would be necessary to produce Model 3s at the hoped-for rate by year’s end. FE4, a manufacturing engineer who left Tesla in June 2017, stated that the automated production line was not finished when FE4 left and that the few Model 3s being produced were made “mostly by hand.” FE4 was told by the technician who oversaw FE4’s team that “the new projection for completion of the automated line was in 2018.” FE5, a subcontractor employee who was onsite from June or July 2017 to September 2017, estimated that the full production line was only about 45 percent complete by September. A production supervisor, FE3, stated that “until October 18,  FRIEDMAN V. TESLA 7 2017,” when he left Tesla, he “never saw a single Model 3 being constructed on the assembly line.” In addition, there were problems with battery manufacture at the Gigafactory throughout 2017. FE9, a technician at the Gigafactory until October 2017, stated that the Gigafactory did not accomplish even partial automation until September. Production problems continued through FE9’s departure, such that the Gigafactory produced only about two battery packs per day, and prior to October, none of these were “customer saleable” battery packs that were ready to be installed in a Model 3. Shortly after joining the Gigafactory as operations planning manager in May 2017, FE12 realized that the Gigafactory would be unable to produce 5,000 batteries a week by the end of the year. FE12 stated that, nonetheless, Musk (who regularly visited the Gigafactory) “was still saying 5,000, 5,000, 5,000” in July. FE12 estimated that the shift from manual to automatic battery production did not occur until the end of the third quarter of 2017, and even then the automatic production was so beset by problems that the Gigafactory subsequently shifted back to manual production. At a July 28, 2017 event that was streamed online, Tesla “‘handed over’ the first 30 Model 3s to buyers.” During the event, Musk referred to the vehicles as “production cars,” which, according to the complaint, implied that they had been produced on an automatic production line. But “every part of those Model 3s had actually been built by hand, and Tesla was not even close to automated production of the Model 3” at that time. On October 6, the Wall Street Journal broke the news that: 8 FRIEDMAN V. TESLA Unknown to analysts, investors and the hundreds of thousands of customers who signed up to buy it, as recently as early September major portions of the Model 3 were still being banged out by hand, away from the automated production line . . . . Automotive experts say it is unusual to be building large parts of a car by hand during production. . . . It isn’t uncommon for much larger auto makers to hand build pre-production versions of a car prior to the sales launch, but . . . [b]y the time a car goes on sale, the body shop is typically fully automated. By October 9, Tesla’s stock had dropped 3.9 percent. On November 1, 2017, Tesla formally confirmed in a Form 8-K filing with the SEC that it would not meet its end- of-year production goal. On November 2, an article in the car blog Jalopnik detailed a large number of supply and production delays at Tesla. Tesla’s stock fell 6.8 percent between the close of the market on November 1 and 2. Overall, Tesla’s closing stock price fell from $356.88 on October 6 to $299.26 on November 2. According to Plaintiffs, Tesla was still producing only 2,266 Model 3s per week at the end of September 2018. C Gregory Wochos filed this putative class action in the district court on October 10, 2017. Kurt Friedman, a member of the putative class, thereafter moved to be  FRIEDMAN V. TESLA 9 appointed “lead plaintiff” in accordance with the PSLRA, and the district court granted that unopposed motion on February 2, 2018. Thereafter, a First Amended Complaint was filed adding Friedman and Uppili Srinivasan as additional named plaintiffs. 2 On Defendants’ motion, the district court dismissed that complaint with leave to amend, and Plaintiffs Friedman and Srinivasan filed the operative Second Amended Complaint (“SAC”) in September 2018. The SAC alleges that Defendants’ challenged statements concerning Tesla’s production of the Model 3 were false and misleading in violation of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5, 17 C.F.R. § 240 .10b-5. The complaint also asserted an additional claim against the individual defendants, Musk and Ahuja, alleging that they were “controlling persons” who were liable under § 20 of the Securities Exchange Act, 15 U.S.C. § 78t, for Tesla’s alleged violation of § 10(b) and Rule 10b- 5. Defendants again moved to dismiss for failure to state a claim, and this time the district court dismissed the action with prejudice and without leave to amend. The district court concluded that, as to the challenged statements made by Tesla, Plaintiffs had failed to plead any material misrepresentation that was not within the PSLRA’s safe harbor for “forward-looking” statements “accompanied by meaningful cautionary statements.” 15 U.S.C. § 78u- 5(c)(1)(A)(i). The district court expressly declined to reach the additional issues of scienter or loss causation that had also been raised in the motion to dismiss. 2 Jason Wheeler, who had been Ahuja’s immediate predecessor as Chief Financial Officer, had been named as a defendant in the original complaint, but he was dropped from the First Amended Complaint. 10 FRIEDMAN V. TESLA Plaintiffs Friedman and Srinivasan timely appealed. We have jurisdiction under 28 U.S.C. § 1291 , and we review the district court’s dismissal de novo. In re VeriFone Holdings, Inc. Sec. Litig., 704 F.3d 694 , 700–01 (9th Cir. 2012). II Section 10(b) of the Securities Exchange Act generally makes it “unlawful” to “use or employ, in connection with the purchase or sale of any security registered on a national securities exchange . . . any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [SEC] may prescribe . . . .” 15 U.S.C. § 78j(b). The SEC has implemented this provision by promulgating Rule 10b-5, which in turn generally makes it unlawful, “in connection with the purchase or sale of any security,” to “make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.” 17 C.F.R. § 240 .10b-5(b). “Though the text of the Securities Exchange Act does not provide for a private cause of action for § 10(b) violations, the [Supreme] Court has found a right of action implied in the words of the statute and its implementing regulation.” Stoneridge Inv. Partners, LLC v. Scientific- Atlanta, Inc., 552 U.S. 148 , 157 (2008). “In a typical § 10(b) private action a plaintiff must prove (1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation.” Id. On appeal, the parties contest whether Plaintiffs adequately pleaded falsity, scienter, and loss causation.  FRIEDMAN V. TESLA 11 In addressing the adequacy of the operative SAC, we find the issue of falsity to be dispositive, and we therefore do not reach the issues of scienter or loss causation with respect to that complaint. In reviewing the question of falsity, we begin by reviewing the general substantive standards that govern the pleading of falsity in Rule 10b-5 claims, and we then apply those standards to the specific statements challenged by Plaintiffs in their complaint. A In addition to the normal rule that “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) (citation omitted), the PSLRA imposes heightened pleading requirements that require a securities fraud complaint, inter alia, to “specify each statement alleged to have been misleading, [and] the reason or reasons why the statement is misleading.” 15 U.S.C. § 78u-4(b)(1); see also Fed. R. Civ. P. 9(b). In setting forth the reasons why they contend that each challenged statement is misleading, securities plaintiffs may rely on either an affirmative misrepresentation theory or an omission theory. See 17 C.F.R. § 240 .10b-5(b). Under Rule 10b-5, an affirmative misrepresentation is an “untrue statement of a material fact,” and a fraudulent omission is a failure to “state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.” Id. Because both of these theories require falsity with respect to a “material fact,” id. (emphasis added), there are substantial limits in applying such theories to a pure statement of honest opinion. See Omnicare, Inc. v. Laborers Dist. Council Constr. Indus. Pension Fund, 575 U.S. 175 , 183 (2015); see also City of Dearborn Heights Act 345 12 FRIEDMAN V. TESLA Police & Fire Ret. Sys. v. Align Tech., Inc., 856 F.3d 605 , 616 (9th Cir. 2017) (“Although Omnicare concerned Section 11 claims, we conclude that the Supreme Court’s reasoning is equally applicable to Section 10(b) and Rule 10b-5 claims.”). But Omnicare identified three ways in which a statement of opinion may nonetheless involve a representation of material fact that, if that representation is false or misleading, could be actionable. First, every statement of opinion “explicitly affirms one fact: that the speaker actually holds the stated belief.” Omnicare, 575 U.S. at 184. Second, “some sentences that begin with opinion words like ‘I believe’ contain embedded statements of fact.” Omnicare, 575 U.S. at 185 (emphasis added). As the Court explained, a statement that “‘I believe our TVs have the highest resolution available because we use a patented technology’” could give rise to misrepresentation liability if the speaker’s technology was not patented. Id. Third, “a reasonable investor may, depending on the circumstances, understand an opinion statement to convey facts about how the speaker has formed the opinion—or, otherwise put, about the speaker’s basis for holding that view.” Id. at 188. For example, if a company declares that “‘We believe our conduct is lawful,’” a reasonable investor “likely expects such an assertion to rest on some meaningful legal inquiry.” Id. Accordingly, if in fact that company made “that statement without having consulted a lawyer,” the statement “could be misleadingly incomplete,” potentially giving rise to liability under an omission theory. Id. But even if a statement would otherwise be actionable under these standards, the PSLRA carves out a “safe harbor for forward-looking statements” by adding § 21E to the Securities Exchange Act. 15 U.S.C. § 78u-5 (heading). This safe harbor “is designed to protect companies and their  FRIEDMAN V. TESLA 13 officials” when they merely fall short of their “optimistic projections.” In re Quality Sys., Inc. Sec. Litig., 865 F.3d 1130 , 1142 (9th Cir. 2017). The relevant statutory language states: (c) SAFE HARBOR (1) IN GENERAL Except as provided in subsection (b), in any private action arising under this chapter that is based on an untrue statement of a material fact or omission of a material fact necessary to make the statement not misleading, a person . . . shall not be liable with respect to any forward-looking statement, whether written or oral, if and to the extent that— (A) the forward-looking statement is— (i) identified as a forward-looking statement, and is accompanied by meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those in the forward- looking statement; or (ii) immaterial; or (B) the plaintiff fails to prove that the forward-looking statement— 14 FRIEDMAN V. TESLA (i) if made by a natural person, was made with actual knowledge by that person that the statement was false or misleading; or (ii) if made by a business entity; was— (I) made by or with the approval of an executive officer of that entity; and (II) made or approved by such officer with actual knowledge by that officer that the statement was false or misleading. 15 U.S.C. § 78u-5(c)(1). As we explained in Quality Systems, the use of the disjunctive term “or” between subclauses (A) and (B) confirms that “a defendant will not be liable for a false or misleading statement if it is forward- looking and either is accompanied by cautionary language or is made without actual knowledge that it is false or misleading.” 865 F.3d at 1141; see also In re Cutera Sec. Litig., 610 F.3d 1103 , 1112–13 (9th Cir. 2010). Consequently, where a defendant has made a sufficient showing that a challenged forward-looking statement was accompanied by meaningful cautionary statements, see 15 U.S.C. § 78u-5(e), a plaintiff cannot defeat that invocation of § 21E’s safe harbor merely by alleging, for example, that the company knew that the announced forward-looking objective was unlikely to be achieved. Rather, the plaintiff must plead additional facts that would vitiate an element of that version of the safe harbor—such  FRIEDMAN V. TESLA 15 as, for example, facts indicating that the “cautionary statements” cited by the defendant were not “meaningful.” Importantly, however, Quality Systems held that the PSLRA’s safe harbor does not apply in an all-or-nothing fashion, because some statements about the future may combine non-actionable forward-looking statements with separable—and actionable—non-forward-looking statements. 865 F.3d at 1142. In the context of such “mixed” statements, only the forward-looking aspects could be immunized from liability, because the safe harbor is not “designed to protect [issuers] when they make a materially false or misleading statement about current or past facts, and combine that statement with a forward-looking statement.” Id. at 1141– 42 (collecting cases from multiple circuits). B In applying these standards to the 15 challenged statements identified in the SAC, we group those statements into three chronological sets—those made in May 2017, those made in July, and those made in August. We conclude that Plaintiffs have not adequately pleaded falsity as to any of these statements. 1 With respect to each of the challenged statements from May 2017, we hold that Plaintiffs have failed to plead sufficient facts to avoid the PSLRA’s safe harbor or to establish falsity. 16 FRIEDMAN V. TESLA a The SAC specifically alleges that the following seven statements Tesla made in May 2017 were materially false and misleading. (1) On May 3, 2017, Tesla filed a Form 8-K announcing, in part, that “preparations at our production facilities are on track to support the ramp of Model 3 production to 5,000 vehicles per week at some point in 2017.” (2) During a related May 3, 2017 earnings call, Musk stated: Well, actually it seems to be—we’re not really seeing any significant change that needs to occur with Model 3. So it’s coming in as expected, as the design continuation has predicted, it’s getting pretty close to the bull’s-eye, and I’m not aware of anything that would affect our prior statements about volume target. . . . ... There’s plenty of things with uncertainty, but I don’t know anything that would prevent us from starting firstly in July, and exceeding 5,000 units per week by the end of the year. (3) Later during this same earnings call, Musk responded to a question about “the biggest challenges or bottlenecks in ramping production to 5,000 vehicles per week by some point in 2017.” He did so by contrasting Tesla’s approach to the Model 3 with the approach Tesla had taken to its luxury Model X cars:  FRIEDMAN V. TESLA 17 [The Tesla Model] X became kind of like a technology bandwagon of every cool thing you can imagine all at once. . . . That was a terrible strategy. You really want to start off simple and add things over time. . . . So with Model 3 it’s the opposite. We’ve designed it to be easy to make. We’ve got I think a much better supply chain in place where we’ve got the A team from the A suppliers. We didn’t have that for the Model X or the S. And as far as we know, there are no issues. (4) In its Form 10-Q, filed on May 10, 2017, Tesla stated that “Model 3 vehicle development is nearly complete as we approach the start of initial production in July of this year. . . . [P]reparations at our production facilities are progressing to support the ramp of Model 3 production to 5,000 vehicles per week at some point in 2017.” (5) This same 10-Q also stated: “We have started the installation of Model 3 manufacturing equipment at the Fremont Factory and Gigafactory 1, and we are on-track for start of Model 3 production in July 2017.” (6) The 10-Q further stated that: Although we continue to remain on track with our progress at Gigafactory 1, given the size and complexity of this undertaking, it is possible that future events could result in the cost of building and operating Gigafactory 1 exceeding our current expectations and Gigafactory 1 taking longer to expand than we currently anticipate. In addition, we continue to expand production capacity at our 18 FRIEDMAN V. TESLA Fremont Factory and are exploring additional production capacity in Asia and Europe. (7) Finally, Plaintiffs alleged that the following disclosure of risk factors in this 10-Q was materially incomplete and misleading: “We may experience delays in realizing our projected timelines and cost and volume targets for the production, launch and ramp of our Model 3 vehicle, which could harm our business, prospects, financial condition and operating results.” b The district court held that Tesla’s various statements that it was “on track” were protected by the PSLRA’s safe harbor because they were “forward-looking statements regarding plans and objectives for future operations” and “were accompanied by meaningful cautionary statements.” Plaintiffs challenge this ruling, asserting that these predictive statements contain embedded assertions concerning present facts that are actionable under Quality Systems, 865 F.3d at 1142. We disagree. The definition of “forward-looking statement[s]” in § 21E(i)(1) expressly includes “statement[s] of the plans and objectives of management for future operations,” 15 U.S.C. § 78u-5(i)(1)(B) (emphasis added), and “statement[s] of the assumptions underlying or relating to” those plans and objectives, id. § 78u-5(i)(1)(D) (emphasis added). Consequently, in order to establish that a challenged statement contains non-forward-looking features that avoid this definition, a plaintiff must plead sufficient facts to show that the statement goes beyond the articulation of “plans,” “objectives,” and “assumptions” and instead contains an express or implied “concrete” assertion concerning a specific “current or past fact[].” Quality Sys., 865 F.3d  FRIEDMAN V. TESLA 19 at 1142, 1144. Thus, in Quality Systems, we held that, even though they were combined with forward-looking projections about revenue growth, the defendants’ affirmative statements that the defendant company’s current sales and performance were comparable to those in the past were not forward-looking because they “provided a concrete description of the past and present state of the [company’s sales] pipeline.” Id. at 1143–44. With only one exception, Plaintiffs have failed to plead that the challenged May statements contain any such representation of current or past fact. Tesla’s goal to produce 5,000 vehicles per week is unquestionably a “forward-looking statement” under § 21E, because it is a “plan[]” or “objective[] of management for future operations,” and this plan or objective “relat[es] to the products” of Tesla. 15 U.S.C. § 78u-5(i)(1)(B). Contrary to what Plaintiffs contend, Tesla’s various statements that it was “on track” to achieve this goal and that “there are no issues” that “would prevent” Tesla from achieving the goal are likewise forward-looking statements. Because any announced “objective” for “future operations” necessarily reflects an implicit assertion that the goal is achievable based on current circumstances, an unadorned statement that a company is “on track” to achieve an announced objective, or a simple statement that a company knows of no issues that would make a goal impossible to achieve, are merely alternative ways of declaring or reaffirming the objective itself. The statutory safe harbor would cease to exist if it could be defeated simply by showing that a statement has the sort of features that are inherent in any forward-looking statement. The question, then, is whether Plaintiffs have sufficiently pleaded that any of the challenged May statements went 20 FRIEDMAN V. TESLA beyond the mere declaration of the year-end goal in a way that includes a non-forward-looking statement. In this regard, we reiterate that it is not enough to plead that a challenged statement rests on subsidiary premises about how various future events will play out over the timeframe defined by the forward-looking statement. As noted earlier, such “statement[s] of the assumptions underlying or relating” to a declared objective are also deemed to be forward-looking statements. 15 U.S.C. § 78u-5(i)(1)(D). This reasoning precludes Plaintiffs’ theory that Tesla’s year- end goal rested on scheduling assumptions that Tesla knew it was unlikely to meet. Any such schedule about how future production would play out on the way toward the announced goal is simply a set of the “assumptions” about future events on which that goal is based. Like the goal itself, such projected timelines are forward-looking statements. In contrast to such “assumptions” about future events, a concrete factual assertion about a specific present or past circumstance goes beyond the assertion of a future goal, and beyond the articulation of predicate assumptions, because it describes specific, concrete circumstances that have already occurred. Such statements are therefore not forward- looking, and—unlike “on track” assertions—they do not rest on the sort of features that are intrinsic to all forward-looking statements. Thus, while one cannot declare a goal without implicitly or explicitly stating that it is achievable, one can readily announce an objective without stating, for example, that the reason why it is achievable is because production of relevant units actually rose 75% over the last quarter or because the company has actually hit certain intermediate benchmarks. If such factual assertions are made and are false, then they are outside the safe harbor and potentially actionable.  FRIEDMAN V. TESLA 21 Although Plaintiffs claim to have pleaded such actionable statements, we disagree. The closest that Plaintiffs come to alleging that one of Tesla’s May statements conveyed a representation as to a specific past or present fact was in the fifth of the seven statements listed above. See supra at 17. In that statement, Tesla represented, in its first quarter 2017 10-Q, that it had “started the installation of Model 3 manufacturing equipment.” We agree with Plaintiffs that this aspect of the statement is not itself forward-looking, because it asserts a fact about what Tesla’s operations had already achieved. We nonetheless conclude that the statement is not actionable, because Plaintiffs have not pleaded sufficient facts to establish that the statement is materially false or misleading. Plaintiffs’ brief rewrites this statement as if it asserted that Tesla had “begun installation of automated equipment in the first quarter” (emphasis added). But that is not what the statement says—it simply confirms that some unspecified “manufacturing” equipment had been installed at the Tesla facilities, and the complaint does not plead any facts to establish that that representation was false. Plaintiffs argue that, under the standards applicable to Rule 12(b)(6) motions, we must accept as true their assertion that installation of “manufacturing equipment” actually means installation of “automatic manufacturing equipment.” This contention overlooks the heightened pleading requirements imposed by the PSLRA. Where, as here, a plaintiff claims that the words used in a statement have some special or nuanced meaning that differs from what the literal words suggest, the plaintiff must plead facts that will support this crucial premise in order to satisfy the PSLRA’s requirement that a private securities plaintiff adequately plead “the reason or reasons why [a] statement is misleading.” 15 U.S.C. § 78u-4(b)(1) (emphasis added). 22 FRIEDMAN V. TESLA c Because the remaining May statements are forward- looking, the safe harbor applies if they were accompanied by “meaningful cautionary statements.” 15 U.S.C. § 78u- 5(c)(1)(A)(i). The district court correctly concluded that all of the challenged statements, including the May ones, were accompanied by such cautionary statements. As the district court highlighted, Plaintiffs did not directly challenge the adequacy of Tesla’s cautionary statements below, and the same is true of Plaintiffs’ briefs in this court. 3 The only issue Plaintiffs have raised in this regard concerns the district court’s express assumption that, if Plaintiffs had adequately pleaded that the relevant Tesla officer knew that “it was impossible” to meet the company’s forward-looking projections, and “not merely highly unlikely,” then any accompanying “cautionary” language that failed to reveal this impossibility would not be “meaningful” (emphasis added). We need not decide whether the district court was correct in this assumption, 3 That is unsurprising, because Tesla’s cautionary statements were detailed and specific. For example, Tesla’s May 3, 2017 Form 8-K enumerated important “[r]isk [f]actors” that could lead to results that “differ materially from those projected,” such as “risk of delays in the manufacture, production, delivery and/or completion of our vehicles . . . particularly Model 3” and “the ability of suppliers to meet quality and part delivery expectation at increasing volumes.” Tesla’s May 10, 2017 Form 10-Q also enumerated a wide range of risks, including “[t]he loss of any single or limited source supplier or the disruption in the supply of components,” that “could lead to product design changes and delays in product deliveries.” Tesla acknowledged in this document that it had “experienced in the past . . . significant delays or other complications in the design, manufacture, launch and production ramp of new vehicles” and that it “may also experience similar delays . . . in bringing to market and ramping production of new vehicles, such as Model 3.”  FRIEDMAN V. TESLA 23 because we agree with that court that Plaintiffs failed to plead such a known “impossibility” during the entire May through August timeframe in which Defendants made the various challenged statements. Plaintiffs rely on allegations that two employees told Musk in 2016 that the goal of producing 5,000 cars per week by the end of 2017 was impossible to achieve, but the district court correctly held that Plaintiffs failed to plead any facts showing that Musk ever accepted those employees’ views that the goal was impossible. In particular, the district court properly held that Plaintiffs had failed to plead facts showing that Defendants adopted the conservative timeline for production on which these employees’ pessimism was based. Similarly, Plaintiffs’ allegations that “[s]uppliers had informed Tesla that the production timelines were impossible” do not establish that Defendants (who were still in the process of choosing suppliers) shared that gloomy view. Because Plaintiffs therefore failed to plead that Defendants knew their year’s end goal was impossible to achieve, there is no basis for concluding that any of their cautionary statements were supposedly deficient on that ground. 2 Plaintiffs allege that one statement made by the Defendants in July 2017 constitutes an actionable misrepresentation. We disagree. During a televised event at which Tesla “handed over” the first Model 3s to buyers, Musk stated that “there’s actually a total of 50 production cars that we made this month.” Plaintiffs argue that, by using the phrase “production car,” Musk was implying that these Model 3s had been made on an automated assembly line. For reasons 24 FRIEDMAN V. TESLA similar to those discussed above with respect to the fifth May 2017 statement, we agree with the district court that Plaintiffs failed sufficiently to plead that this statement was false. Because the statement would not be false unless the term “production car” actually means “car produced on a fully automated line,” Plaintiffs had to plead sufficient facts to establish that the actual term used had the distinctive, and false, meaning that Plaintiffs claim. See 15 U.S.C. § 78u- 4(b)(1); see also supra at 21. But as the district court correctly held, Plaintiffs pleaded no facts to support their premise that “production car” would be understood as referring exclusively to the fully automated production of identical vehicles. Plaintiffs’ allegations concerning this alleged misrepresentation consequently fail to meet the heightened pleading standards of the PSLRA. 3 Plaintiffs’ SAC challenged seven statements made in August 2017, but we conclude that none of them is actionable. a The SAC alleges that the following seven statements that Tesla made in August 2017 were materially false and misleading. (1) In its August 2, 2017 Form 8-K, Tesla repeated that “[b]ased on our preparedness at this time, we are confident we can . . . achieve a run rate of 5,000 vehicles per week by the end of 2017.” (2) Similarly, during Tesla’s August 2, 2017 earnings call, Musk stated that “we remain—we believe on track to achieve a 5,000 unit week by the end of this year.”  FRIEDMAN V. TESLA 25 (3) During the same call, Musk stated that Tesla was “also making great progress on the battery front.” (4) When asked during the earnings call about Tesla’s unfavorable third quarter profit margin forecast, Musk responded that “Model 3 [has] fundamentally negative gross margin in the very beginning, because you’ve got a gigantic machine producing—that’s meant for 5,000 vehicles a week and it’s producing a few hundred vehicles a week.” (5) Two days later, Tesla filed its quarterly 10-Q report. In that report, Tesla represented that “[w]e may experience delays in realizing our projected timelines and cost and volume targets for the production, launch and ramp of our Model 3 vehicle, which could harm our business, prospects, financial condition and operating results,” and restated that “[w]e . . . have announced our goal to increase Model 3 vehicle production to 5,000 vehicles per week by the end of 2017.” (6) In this same 10-Q report, Tesla also addressed progress at the Gigafactory: “While we currently believe that our progress at Gigafactory 1 will allow us to reach our production targets, our ultimate ability to do so will require us to resolve the types of challenges . . . that we have experienced to date, including at Gigafactory 1.” (7) In this 10-Q report, Tesla also made these further disclosures about problems at the Gigafactory: While Gigafactory 1 began producing lithium-ion cells for energy storage products in January 2017 and has since begun producing lithium-ion cells for Model 3, we have no other direct experience in the production of lithium-ion cells. Given the 26 FRIEDMAN V. TESLA size and complexity of this undertaking, it is possible that future events could result in . . . Gigafactory 1 taking longer to ramp production and expand than we currently anticipate. In order to reach our planned volume and gross margin for Model 3, we must have significant cell production from Gigafactory 1 . . . . We are now in the early stages of production and have experienced the types of challenges that typically come with a production ramp. We expect that we will continue to experience challenges . . . . While we currently believe that we will reach our production targets, if we are unable to resolve ramping challenges and expand Gigafactory 1 production in a timely manner and at reasonable prices, . . . our ability to supply battery packs to our vehicles, especially Model 3, and other products could be negatively impacted. b We agree with the district court that none of these statements is actionable. The August reaffirmations of Tesla’s year-end goal—e.g., “we are confident we can . . . achieve a run rate of 5,000 vehicles per week by the end of 2017” and “we remain . . . on track to achieve a 5,000 unit week by the end of the year”—are forward-looking for the same reasons that Tesla’s original projections and assumptions in May are. See supra at 18–19. Accordingly, Tesla’s reiterations of its ultimate “objective[]” for 2017 production rates in its first, second, and fifth August statements are therefore forward-looking statements within the meaning of the PSLRA. See 15 U.S.C. § 78u-5(i)(1)(B).  FRIEDMAN V. TESLA 27 Tesla’s fifth, sixth, and seventh August statements are also forward-looking to the extent that they describe the future challenges Tesla might confront over the remaining months of 2017. In explaining these issues, these statements set forth the “assumptions underlying or relating to” the announced year-end goal and therefore fall squarely within the statute’s definition of a forward-looking statement. 15 U.S.C. § 78u-5(i)(1)(D). Plaintiffs contend that, by failing to disclose that some of these types of risks had already been experienced, Tesla’s statements constituted misleading omissions about current or past challenges. But unlike the affirmative statements about “backlog” figures at issue in the case on which Plaintiffs rely, see Berson v. Applied Signal Tech., Inc., 527 F.3d 982 , 985–87 (9th Cir. 2008) (“backlog reports” were misleading because they failed to disclose that they included, as backlog, work that had been halted due to stop-work orders), these challenged statements contain no explicit or implicit representation that Tesla had not already experienced such issues. On the contrary, the sixth statement affirmatively acknowledges that Tesla has “experienced to date” the sort of “challenges” that it would have to overcome in order to achieve its stated objective. Plaintiffs contend that the first, third, and fourth August statements contain material misrepresentations concerning specific present or past facts, but the district court correctly rejected these claims. Because, as explained earlier, every announcement of a production goal implicitly represents an assertion that the goal is presently achievable, see supra at 19, Tesla’s unadorned comment in its first statement that its “preparedness at this time” would allow it to achieve its year-end goal does not go beyond what is inherent in declaring any forward-looking objective. Such a generic statement does not include the sort of “concrete description” 28 FRIEDMAN V. TESLA about the facts concerning the “past and present state” of production that we confronted in Quality Systems. See 865 F.3d at 1144. On appeal, Plaintiffs now argue that the reference to “preparedness” in the first statement (which is from Tesla’s August 2, 2017 Form 8-K filing) should be understood as a cross-reference to another statement that was made in that same filing and that is not mentioned in the complaint. But Plaintiffs cannot properly rely on such unpleaded additional statements in defending the adequacy of their SAC, because the PSLRA explicitly requires that the complaint “specify each statement alleged to have been misleading” and “the reason or reasons why the statement is misleading.” 15 U.S.C. § 78u-4(b)(1). This argument thus presents, at most, a question of whether leave to amend should have been granted, and we address that question separately below. See infra at 29–33. To the extent that the third and fourth statements arguably contain representations about current facts, we agree with the district court that Plaintiffs have failed to allege sufficient facts to establish falsity. Given that a “pure statement of opinion” is generally not actionable, see Omnicare, 575 U.S. at 187, Tesla’s remark in the third statement that “great progress” was being made on battery production would potentially be an actionable false statement only if, as the district court put it, Tesla had been “making no progress at all.” Plaintiffs pleaded no facts that would establish falsity in that sense. As to the fourth statement’s contrast between third-quarter performance and Tesla’s year-end goal, the district court correctly concluded that it was a “projection, rather than a statement about then- current production levels.” This August 2 statement was made in response to a question about anticipated gross margins for the third quarter of 2017, which still had nearly two months left to go. Given that the question sought an  FRIEDMAN V. TESLA 29 explanation for the projected third-quarter margins, the ensuing reference to a production system that is “meant for 5,000 vehicles a week and it’s producing a few hundred vehicles a week” can be understood only as contrasting overall third-quarter expectations with the year-end goal. Plaintiffs have thus failed to plead falsity as to any August 2017 statement that is not forward-looking. As to the statements that are forward-looking, they were accompanied by meaningful cautionary statements, as explained earlier. See supra at 22–23. * * * As a result, the district court correctly concluded that none of the 15 statements challenged in the SAC was actionable. And because Plaintiffs have “not sufficiently alleged violations of Section 10(b) and Rule 10b-5,” they likewise “cannot establish control person liability” under § 20(a). See City of Dearborn Heights, 856 F.3d at 623. The SAC was therefore properly dismissed. III The only remaining question is whether the district court erred in dismissing the SAC without leave to amend because of the futility of further amendment. “We review the denial of leave to amend for an abuse of discretion, but we review the question of futility of amendment de novo.” United States v. United Healthcare Ins. Co., 848 F.3d 1161 , 1172 (9th Cir. 2016) (citations omitted); see also Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 , 1051–53 (9th Cir. 2003) (per curiam). We conclude that further amendment would be futile and that leave to amend was properly denied. 30 FRIEDMAN V. TESLA As stated earlier, Plaintiffs’ briefs on appeal place heavy reliance on an additional August 2017 statement that was not pleaded in the SAC. Specifically, Plaintiffs contend that the following statement from Tesla’s August 2, 2017 Form 8-K filing is false and misleading: During Q2, our engineering, manufacturing and supply chain teams were focused on the final stages of Model 3 product development and building the “machine-that-makes-the- machine” for the start of production. . . . ... Having started production of Model 3 on schedule in July, and having installed the first Solar roofs, our teams are now focused on ramping the production rate of these products to support our mission of accelerating the world’s transition to sustainable energy. Plaintiffs argue that the reasonable import of this statement is that Tesla had completed the “machine-that-makes-the- machine”—that is, the automated assembly line—and had started such automated production in July. We need not decide whether Plaintiffs have demonstrated that they can sufficiently plead falsity and scienter for this additional statement. Even assuming arguendo that they have done so, we conclude that such an amendment would be futile because Plaintiffs have failed to show that they can plead loss causation as to this statement. The loss causation element of a § 10(b) claim “is simply a variant of proximate cause,” and “the ultimate issue is whether the defendant’s misstatement, as opposed to some  FRIEDMAN V. TESLA 31 other fact, foreseeably caused the plaintiff’s loss.” Lloyd v. CVB Fin. Corp., 811 F.3d 1200 , 1210 (9th Cir. 2016). Loss causation thus focuses on whether a loss can be attributed to “‘the very facts about which the defendant lied.’” Mineworkers’ Pension Scheme v. First Solar, Inc., 881 F.3d 750 , 753 (9th Cir. 2018) (per curiam) (citation omitted). Because the nature of a fraud is that it conceals “underlying facts . . . that affect the stock price,” id. at 754 , then if the stock price falls shortly after the disclosure of the true facts, that decline suggests that the fraud had artificially propped up the stock price. The analysis is contextual, and where, for example, a “modest” drop in the stock price coincides with the disclosure of certain news but then “recover[s] very shortly after,” the allegation of loss causation may be insufficient. Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049 , 1064–65 (9th Cir. 2008). The record here confirms that Plaintiffs have failed to show that they can adequately allege loss causation based on the theory that Tesla misrepresented in August 2017 that automatic production had begun in July. Any such misrepresentation would have been revealed by the Wall Street Journal’s report, after market hours on Friday, October 6, 2017, that “[u]nknown to analysts, investors and the hundreds of thousands of customers who signed up to buy it, as recently as early September major portions of the Model 3 were still being banged out by hand, away from the automated production line, according to people familiar with the matter.” The same article further explained that, “[w]hile the car’s production began in early July, the advanced assembly line Tesla has boasted of building still wasn’t fully ready as of a few weeks ago.” Because this October 6 article disclosed precisely the fact that Plaintiffs contend had been misrepresented—viz., that automatic production had not started in July—it provides a singularly appropriate context 32 FRIEDMAN V. TESLA for assessing the adequacy of Plaintiffs’ theory of loss causation. 4 Tesla’s stock price, which had closed at $356.88 on October 6, closed at $342.94 on the next trading day, October 9. However, the stock price immediately rebounded, closing at $355.59 on October 10 and trading between $350 and $360 over the next week. The quick and sustained price recovery after the modest October 9 drop refutes the inference that the alleged concealment of this particular fact caused any material drop in the stock price. See Metzler, 540 F.3d at 1064–65; see also In re Oracle Corp. Sec. Litig., 627 F.3d 376 , 392 (9th Cir. 2010) (“To adequately plead loss causation . . . a plaintiff must allege that the ‘share price fell significantly after the truth became known.’” (emphasis added) (citation omitted)); cf. 4 T. Hazen, Law of Securities Regulation § 12.93 (2020 update) (“If the price movement of the stock in question is not in sync with the plaintiff’s theory of recovery, loss causation will be extremely difficult, if not impossible, to prove.”). Plaintiffs have thus failed to show that they can adequately plead loss causation as to the additional August 2 statement that they did not include in the SAC. Because Plaintiffs have not shown any other basis for concluding that 4 Plaintiffs are therefore wrong to focus on the asserted impact of a later November 2, 2017 article in the car blog Jalopnik. The alleged falsity in the August 2 statement had already been revealed by the Wall Street Journal article in October, and the November 2 article came after Tesla’s public acknowledgment, in its November 1, 2017 Form 8-K filing, that it would not produce 5,000 cars per week until at least the end of the first quarter of 2018. The October 6 article thus provides the appropriate point of reference for assessing whether the alleged falsity in the August 2 statement affected Tesla’s stock price.  FRIEDMAN V. TESLA 33 further amendment would not be futile, the district court correctly dismissed this action with prejudice. AFFIRMED.

2021-01-26 18:00:46.007146+00

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/25/20-56357_order.pdf

FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 25 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT HARVEST ROCK CHURCH, INC., itself No. 20-56357 and on behalf of its member churches in California; HARVEST INTERNATIONAL D.C. No. MINISTRY, INC., itself and on behalf of its 2:20-cv-06414-JGB-KK member churches in California, Central District of California, Los Angeles Plaintiffs-Appellants, ORDER v. GAVIN NEWSOM, in his official capacity as Governor of the State of California, Defendant-Appellee. Before: O’SCANNLAIN, RAWLINSON, and CHRISTEN, Circuit Judges. In light of our court’s recent opinion in South Bay United Pentecostal Church v. Newsom, No. 20-56358 (9th Cir. Jan. 22, 2021), Appellants’ emergency motion for an injunction pending appeal is GRANTED in part and DENIED in part, without prejudice to renewing the request before the merits panel in this case. The State of California is enjoined from enforcing the following policies against Harvest Rock Church or its member churches pending resolution of the appeal in this case: (1) the fixed 100-person attendance limit on indoor places of worship under Tier 2 of the State’s Blueprint for a Safer Economy; and (2) the fixed 200-person attendance limit on indoor places of worship under Tier 3 of the Blueprint. This injunction does not prevent the State from enforcing the following policies against Harvest Rock or its member churches pending resolution of the appeal in this case: (1) the total prohibitions against indoor worship under Tier 1 of the Blueprint and the December 3 Regional Stay at Home Order; (2) the limitations on attendance at indoor worship services under Tiers 2, 3, and 4 of the Blueprint that are tied to a percentage of a facility’s fire-code capacity; and (3) the State’s restrictions on singing and chanting at indoor worship services. IT IS SO ORDERED. 2  FILED Harvest Rock Church, Inc. v. Newsom, No. 20-56357 JAN 25 2021 O’SCANNLAIN, J., specially concurring: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I agree that, in light of our court’s recent opinion in South Bay United Pentecostal Church v. Newsom, — F.3d —, 2021 WL 222814 (9th Cir. Jan. 22, 2021), we must largely deny Harvest Rock Church’s emergency motion for an injunction against the State of California’s draconian restrictions on indoor worship services. I write separately, however, because I believe that the decision in South Bay is woefully out of step with both the Supreme Court’s decision in Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (per curiam), and our own court’s decision in Calvary Chapel Dayton Valley v. Sisolak, 982 F.3d 1228 (9th Cir. 2020). A simple, straightforward application of these controlling cases compels what should be the obvious result here: California’s uniquely severe restrictions against religious worship services—including its total ban against indoor worship in nearly the entire state—are patently unconstitutional and should be enjoined. The court’s refusal to do so in South Bay cries out for correction. I In an effort to combat the spread of COVID-19, California’s “Blueprint for a Safer Economy” and its December 3 Stay at Home Order completely prohibit indoor worship services in nearly the whole state. Even in the midst of the present 1 pandemic, these measures are drastic: California is the only state in the country that imposes such a ban, according to the brief filed in this case by an organization participating as amicus curiae. See Brief of the Becket Fund for Religious Liberty as Amicus Curiae, Dkt. No. 29, at 2–4. Yet, in exactly the same locales where indoor worship is prohibited, California still allows a vast array of secular facilities to open indoors, including (to name only a few): retail stores, shopping malls, factories, food-processing plants, warehouses, transportation facilities, childcare centers, colleges, libraries, professional sports facilities, and movie studios. II We should have little trouble concluding that these severe measures violate the Free Exercise Clause of the First Amendment. My view on that question is unchanged from my dissent from our denial of Harvest Rock Church’s first emergency motion for an injunction pending appeal in October. See Harvest Rock Church, Inc. v. Newsom, 977 F.3d 728 , 731 (9th Cir. 2020) (O’Scannlain, J., dissenting), cert. granted before judgment, — S. Ct. — , 2020 WL 7061630 (2020), and vacated on remand, 981 F.3d 764 (9th Cir. 2020). Since then, two intervening cases have entered injunctions against attendance caps on worship services that were far less extreme than California’s total ban. See Roman Cath. Diocese, 141 S. Ct. at 63; Calvary Chapel, 982 F.3d at 1228. These controlling decisions compel the same conclusion here. 2  A First, there can be no doubt that California’s discriminatory treatment of houses of worship must be subject to strict scrutiny. See Roman Cath. Diocese, 141 S. Ct. at 67; Calvary Chapel, 982 F.3d at 1233. Indeed, even the South Bay opinion could not avoid that reality. See South Bay, 2021 WL 222814 , at *8–9. B Second, the controlling decisions also eliminate any notion that California’s measures withstand such scrutiny. It should go without saying that strict scrutiny is an exceedingly difficult standard to satisfy—indeed it is “our most rigorous and exacting standard of constitutional review.” Miller v. Johnson, 515 U.S. 900 , 920 (1995). To sustain its ban on indoor worship, the State must demonstrate that such a measure is narrowly tailored to serve a compelling state interest. Roman Cath. Diocese, 141 S. Ct. at 67. That is, the State must show that its “inroad on religious liberty . . . is the least restrictive means of achieving” its compelling interest. Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707 , 718 (1981) (emphasis added). The State’s interest in controlling the spread of a deadly pandemic is unquestionably compelling; no one disputes this. But California has not come close to showing that its measures are narrowly tailored to that interest. As exhaustively recounted in the South Bay decision, the State submitted many pages 3 of expert testimony setting forth its understanding of how COVID-19 is spread and why indoor activities present a risk of such spread. But even if we were to accept that testimony as true, 1 it does not support a total ban on indoor services as the least restrictive means available to mitigate the risk at places of worship. And how could it be? The South Bay decision itself proves the point that there are many ways that the State might safeguard indoor activities that stop well short of a total prohibition. The opinion discusses at great length the variety of less severe measures that California has taken to allow all manner of secular activity to take place safely indoors, including occupancy limitations; facemask, physical- distancing, and disinfection protocols; installation of plexiglass barriers; regular COVID-19 testing practices; and penalties the State might enforce for failures to comply with such requirements. See generally South Bay, 2021 WL 222814 , at *11–15. The obvious conclusion should be that, because the State has found measures like these sufficient to safeguard indoor activities as varied as running a 1 With respect, I question the salience of much of the evidence recounted in South Bay, which, among other things, often presents assertions about issues far beyond the scientific expertise of an infectious disease specialist. For example, the views of an epidemiologist can hardly compel deference on matters of religion. Thus, I see no reason for our court to have credited an epidemiologist’s assertion that individuals come to places of worship for the specific “purpose of being together,” South Bay, 2021 WL 222814 , at *3 (quoting declaration of Dr. George Rutherford), as opposed to any number of relevant private religious purposes— such as to pray to God within the sacred and spiritually uplifting confines of a church, synagogue, or mosque. 4 daycare center, shopping in a mall, working in a warehouse or factory, riding public transportation, practicing a professional sport, attending a college class, or filming a movie, then surely some combination of similar measures might work for indoor religious worship as well. Even if it weren’t otherwise clear that the State’s total ban is not the narrowest way by which it might make indoor worship safer, the Supreme Court’s decision in Roman Catholic Diocese dictates such a conclusion. There, the Court held that New York’s 25-person cap on attendance at worship services was a restriction “far more severe than has been shown to be required to prevent the spread of the virus.” Roman Cath. Diocese, 141 S. Ct. at 67. The Court observed that “there are many other less restrictive rules that could be adopted to minimize the risk to those attending religious services,” including, “[a]mong other things,” tying “the maximum attendance at a religious service . . . to the size of the church or synagogue.” Id. Our court subsequently held that even a 50-person cap on attendance at worship services was too inflexible to be narrowly tailored. Calvary Chapel, 982 F.3d at 1234. If fixed attendance caps of 25 or 50 people are too rigid and too extreme to withstand strict scrutiny, how can a complete ban not be? To paraphrase the Supreme Court, nothing in the record recounted in South Bay supports the conclusion that “admitting [even a single person] to a 1,000-seat church or 400- 5 seat synagogue would create a more serious health risk than the many other activities that the State allows.” Roman Cath. Diocese, 141 S. Ct. at 67. Although we judges “are not public health experts,” id. at 68, we cannot simply forfeit all common sense to the State’s assertions. We must instead insist upon a “serious examination of the need for [the State’s] drastic measure[s].” Id. Under any meaningful examination, California’s complete ban on indoor worship fails strict scrutiny—just as New York’s and Nevada’s more permissive regimes did before. III The remaining Winter factors also favor an injunction. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 , 20 (2008). Because the State’s restrictions violate the Free Exercise Clause of the First Amendment, there “can be no question” that their continued enforcement would cause irreparable harm to the religious believers and places of worship currently prohibited from worshipping indoors. Roman Cath. Diocese, 141 S. Ct. at 67. An injunction to protect these constitutionally guaranteed rights undoubtedly serves the public interest. Although the State’s concern for mitigating a public health crisis is undeniably weighty, “[n]o public interest is served by maintaining an unconstitutional policy when constitutional alternatives are available to achieve the same goal.” Agudath Israel of Am. v. Cuomo, 983 F.3d 620 , 637 (2d Cir. 2020); see also Hernandez v. Sessions, 872 F.3d 976 , 996 (9th Cir. 2017) (“[T]he 6 injunction serves the interests of the general public by ensuring that the government’s . . . procedures comply with the Constitution.”). “[E]ven in a pandemic, the Constitution cannot be put away and forgotten.” Roman Cath. Diocese, 141 S. Ct. at 68. Thus, as both the Supreme Court and our court have agreed: Even in a case with such vital interests on each side, the balance of harms and the public interest require us to enjoin the State’s unconstitutional practices. Indeed, neither court appears to have had much difficulty reaching such a conclusion. See id. at 67–68; Calvary Chapel, 982 F.3d at 1234. Until now. 7  FILED Harvest Rock Church v. Newsom, No. 20-56357 JAN 25 2021 Christen, Circuit Judge, concurring MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I write separately, and briefly, to clarify a few points. First, when Harvest Rock filed its emergency motion for injunction pending appeal, two other emergency motions were pending in which houses of worship challenged California’s response to the COVID-19 pandemic. One of those cases, Gish v. Newsom, No. 20-56324, was consolidated with South Bay Pentecostal Church v. Newsom, No. 20-56358, but the issues in Harvest Rock’s motion were not aligned with those presented in South Bay. In particular, the briefing in South Bay addressed California’s December 3, 2020 Stay at Home and an order issued December 19, 2020 by Los Angeles County. The posture of these challenges changed at the January 4, 2021 argument held on Harvest Rock’s motion because the parties agreed to supplement their briefs to address the December 3, 2020 Stay at Home Order. Additionally, the order issued by Los Angeles County was withdrawn. At that point, the issues raised by Harvest Rock’s motion became aligned with those in South Bay, and under our court rules, the South Bay panel had priority to issue a merits ruling. See General Order 4.1(a). Oral argument was held in South Bay on January 15, 2021. To avoid issuing a ruling on Harvest Rock’s emergency motion that might have conflicted with South Bay’s merits ruling—especially at a time when California’s public health system is under tremendous strain—it was important to allow the South Bay panel time to issue its opinion. Second, because the South Bay panel has priority, the relief ordered here mirrors the relief granted in South Bay.

2020-06-05 07:03:25.09591+00

https://efast.gaappeals.us/download?filingId=26d1cab3-7bf4-475b-9775-882edeaaeb8c

FIFTH DIVISION MCFADDEN, C. J., RICKMAN AND MARKLE, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. Please refer to the Supreme Court of Georgia Judicial Emergency Order of March 14, 2020 for further information at (https://www.gaappeals.us/rules). June 4, 2020 In the Court of Appeals of Georgia A18A0829. ARRINGTON v. THE STATE. MARKLE, Judge. Following a jury trial, James Arrington was convicted of armed robbery, aggravated assault, kidnapping with bodily injury, and possession of a firearm by a convicted felon. In his initial appeal, Arrington argued that the trial court abused its discretion in admitting the other acts evidence under OCGA § 24-4-404 (b) (“Rule 404 (b)”) because the prior acts were not relevant to show intent, motive, opportunity, or knowledge; any probative value of those prior convictions was substantially outweighed by their prejudicial effect; and the error in admitting them was not harmless. We affirmed the trial court’s admission of this evidence, holding that the trial court did not abuse its discretion in admitting Arrington’s prior convictions for the purpose of establishing intent. Arrington v. State, 347 Ga. App. 750 , 754 (820 SE2d 796) (2019) (physical precedent only).The Supreme Court of Georgia vacated the decision, and remanded the case for reconsideration in light of its subsequent decision in Jackson v. State, 306 Ga. 69 , 74-81 (2) (829 SE2d 142) (2019). In light of Jackson, we vacate our previous opinion and conclude that the prior convictions were inadmissible under Rule 404 (b), and the error in admitting them was not harmless. We thus reverse the trial court’s denial of Arrington’s motion for new trial. The underlying facts of this case are detailed in our prior decision. Arrington, 347 Ga. App. at 750-752 . In summary, the evidence showed that, in the early morning hours of November 3, 2012, R. H. and A. B. were driving an unmarked van loaded with ATM machines and approximately $128,000 in cash belonging to Atlanta Cash Solutions. As R.H. was driving the van to deliver the ATMs, a man walked into the street in front of the van, holding a gun, and ordered R. H. to stop. A second man then approached, and the two men entered the van, assaulted and threatened both victims, and ordered R. H. to drive. The robbers eventually released the victims, who went to a nearby restaurant and called the police. The armed robbers escaped with the cash. 2  Ultimately, Arrington’s cell phone was recovered in the van. Cell phone tracking records showed three calls were made from Arrington’s phone about the same time as the armed robbery and less than a mile away from the crime scene. Police also found a knit cap behind the restaurant. When interviewed by police, Arrington voluntarily told police that he had borrowed R. H.’s knit cap. Arrington’s uncle told police that Arrington had traveled to Atlanta to do a job with R. H. The jury also heard evidence of Arrington’s two prior convictions for armed robbery. In the first case, Arrington used a handgun to rob a convenience store clerk, and take money from the cash register. In the second case, Arrington pretended to use a handgun to take money from the cash register at a drive-thru restaurant. Arrington did not testify at trial, and he was convicted on all counts. In his sole enumeration of error in this appeal, Arrington argues that Jackson compels us to conclude that (a) the trial court abused its discretion in admitting the other acts evidence because this evidence was more prejudicial than probative under OCGA § 24-4-403 (“Rule 403”), and (b) that the admission of the evidence was not harmless because the evidence against him was entirely circumstantial.1 We agree. 1 The trial occurred in October 2014. Therefore, the new Evidence Code applied. State v. Almanza, 304 Ga. 553 , 555 (2) (820 SE2d 1) (2018). 3  (a) Admissibility of prior convictions under Rule 404 (b) Under OCGA § 24-4-404 (b), [e]vidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. To be admissible, the evidence of a defendant’s prior acts must satisfy a three-part test: (1) the evidence is relevant to an issue in the case other than the defendant’s character, (2) the probative value is not substantially outweighed by the danger of unfair prejudice as required by [OCGA § 24-4-403], and (3) there is sufficient proof for a jury to find by a preponderance of the evidence that the defendant committed the prior act. (Citations and footnote omitted.) McWilliams v. State, 304 Ga. 502 , 509 (3) (820 SE2d 33) (2018). Here, Arrington concedes that the evidence of his prior convictions was relevant to the issue of intent under the first prong of the test, and he does not challenge that the State established that he committed the prior crimes under the third 4 prong. Rather, Arrington argues that the State failed to prove the second prong of the test-- that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice under Rule 403. As to the second prong of the test, we have held that the exclusion of evidence under Rule 403 is an extraordinary remedy which should be used only sparingly. Indeed, this Court reviews the admission of Rule 404 (b) evidence for a clear abuse of discretion, a deferential review requiring us to make a common sense assessment of all the circumstances surrounding the extrinsic offense, including prosecutorial need, overall similarity between the extrinsic act and the charged offense, as well as temporal remoteness. (Citations and punctuation omitted.) Chambers v. State, 351 Ga. App. 771 , 775-776 (2) (833 SE2d 155) (2019); see also Jones v. State, 301 Ga. 544 , 548 (2) (802 SE2d 234) (2017). Rule 403 further provides that [r]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. OCGA § 24-4-403. 5  And, as we have explained, [p]robative value of evidence derives in large part from the extent to which the evidence tends to make the existence of a fact more or less probable. Generally speaking, the greater the tendency to make the existence of a fact more or less probable, the greater the probative value. And the extent to which evidence tends to make the existence of a fact more or less probable depends significantly on the quality of the evidence and the strength of its logical connection to the fact for which it is offered. Probative value also depends on the marginal worth of the evidence-- how much it adds, in other words, to the other proof available to establish the fact for which it is offered. The stronger the other proof, the less the marginal value of the evidence in question. And probative value depends as well upon the need for the evidence. When the fact for which the evidence is offered is undisputed or not reasonably susceptible of dispute, the less the probative value of the evidence. (Citations and footnote omitted.) McWilliams, 304 Ga. at 509 (3). With these factors in mind, we consider the evidence in this case, and conclude that the other acts evidence should have been excluded. Elements to be considered in determining the probative value of the other act evidence offered to prove intent include its overall similarity to the charged crime, the prosecutorial need for it, and its temporal remoteness. Jackson, 306 Ga. at 77 (2) (b) (ii). Here, as in Jackson, the State addressed the similarity factor by generally 6 pointing out that, in both prior acts and the charged offense, Arrington used either a gun or what appeared to be a gun to take money from the victim. Id. However, and again, not unlike in Jackson, the State failed to acknowledge the differences between the prior acts and the charged offense-- differences which significantly diminish the probative value of the extrinsic evidence.2 Both of Arrington’s prior armed robberies were crimes involving very little, if any, planning, and were committed by Arrington, acting alone. In contrast, the evidence in the instant case showed that the charged offense involved at least two perpetrators who committed the crime after a certain degree of planning with apparent inside information. The only similarities between the prior acts and the current offense is the use of a handgun to take money, whereas the marked dissimilarities diminish the probative value of the extrinsic evidence. See Jackson, 306 Ga. at 78 (2) (b) (ii). The probative value of this evidence was further diminished by the lack of prosecutorial need for it. Arrington concedes that intent was not at issue in this case, and thus any evidence of intent was minimal. The current case does not present a situation where Arrington either was present at the crime but claims that he did not 2 The Supreme Court explained in Jackson that, under the new Evidence Code, we need to consider the dissimilarities between the extrinsic act and the charged act, not just the similarities. Id. 306 Ga. at 78 (2) (ii). 7 participate, or that the other perpetrators lacked intention to commit the crime. Rather, Arrington contends he simply was not one of the perpetrators. In this regard, the prosecutorial need for the other acts evidence, as in Jackson, was low as to the purpose of showing any of the elements for which it was offered and admitted-- motive, opportunity, intent, knowledge, modus operandi, and absence of mistake. See Jackson, 306 Ga. at 78 -79 (2) (b) (ii). Moreover, our consideration of the temporal remoteness of the prior convictions likewise weighs against their admission. Because the convictions occurred some 23 years prior, their admission appears to be solely for the purpose to show Arrington’s propensity for committing such crimes.3 Jackson, 306 Ga. at 80 (2) (b) (ii). Accordingly, we conclude that the probative value of this evidence is not substantially outweighed by the danger of unfair prejudice under Rule 403. (b) Harmless error analysis Because we conclude that admission of the other acts evidence was erroneous, 3 We note, however, that we have upheld the admission of prior crimes occurring more than 24 years prior to the charged offense under other circumstances. Compare Harvey v. State, 344 Ga. App. 761 , 769-770 (2) (a) (ii) (811 SE2d 479) (2018) (upheld admission of 1990 and 1996 prior crimes in case involving crime committed in 2014). 8  we must review the record de novo to determine whether the trial court’s error was harmless. The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict. In doing so, we weigh the evidence as we would expect reasonable jurors to have done so, as opposed to assuming that they took the most pro-guilt possible view of every bit of evidence in the case. (Citations and punctuation omitted.) Brown, 303 Ga. at 164 (2). As Arrington argues, the evidence against him in this case was not overwhelming and was entirely circumstantial. There was no direct evidence placing Arrington at the scene of the crime. No eyewitness identified him, and no DNA was discovered at the scene. The only evidence linking Arrington to the crime was his cell phone, which was indisputably in the possession of Arrington’s uncle.4 Based on the lack of overwhelming evidence against Arrington as to the charged crime, we cannot say that it was highly probable the admission of the extrinsic evidence did not 4 Arrington argues that, unlike in Jackson, the State improperly emphasized his prior crimes in its closing argument, which the Supreme Court has held can further lend to the harmfulness of the admission of the other acts evidence. See Jackson, 306 Ga. at 80 (2) (c); Cf. Thompson v. State, 302 Ga. 533 , 542 (III) (807 SE2d 899) (2017) (an error in admitting OCGA § 24-4-404 (b) was harmful in part because the State emphasized the evidence in closing). Here, however, the State raised the prior crimes in rebuttal after Arrington’s trial counsel mentioned them in his closing, and it does not otherwise appear the State emphasized them. 9 contribute to the verdict and was harmless.5 Brown, 303 Ga. 158 , 164-165 (2) (810 SE2d 145) (2018); see also Sloan v. State, 351 Ga. App. 199 , 211-212 (2) (f) (830 SE2d 571) (2019). Accordingly, we conclude that the trial court abused its discretion in admitting the other acts evidence, and we reverse the trial court’s denial of Arrington’s motion for new trial. Because Arrington does not challenge the sufficiency of the evidence supporting his convictions, the State may retry him. Blackwell v. State, 351 Ga. App. 302 , 303 (1) (830 SE2d 782) (2019). Judgment reversed. McFadden, C . J., and Rickman, J., concur. 5 We note that, although insufficient to cure the error here, the trial court gave an appropriate limiting instruction on how to consider the other acts evidence, and it also gave a limiting instruction in its charge to the jury. 10

2020-11-20 19:22:12.828157+00

CORINTH STATE BANK, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Corinth State Bank v. Commissioner Docket No. 18259. United States Board of Tax Appeals 14 B.T.A. 1162; 1929 BTA LEXIS 2985; January 10, 1929, Promulgated *2985 P. A. Bayer, Esq., for the respondent. MARQUETTE *1162 OPINION. MARQUETTE: This proceeding is for the redetermination of a deficiency in income tax asserted by the respondent for the year 1924 in the amount of $375.99. The record herein consists only of the pleadings and the petitioner's income-tax return for the year 1924, which was introduced in evidence by the respondent. The record shows that the petitioner is a banking corporation organized under the laws of Mississippi, with its office and place of business at Corinth; that in 1924 it became liable for state, county and municipal taxes, and that it did not pay them until 1925; that on its income-tax return for 1924 it deducted the amount of said taxes and that the respondent disallowed the deduction, since the petitioner's books were kept on the basis of cash receipts and disbursements. Judgment will be entered for the respondent.

2020-01-17 22:01:36.214023+00

Smith

*772OPINION. Smith: The principal questions at issue in this proceeding are whether the Hutterische Bruder Gemeinde is entitled to have its invested capital for the year 1918 computed upon the basis of the *773value in 1906 of the property, which was deeded to it in that year, and, if so, the value of such property at that time. The parties are substantially in agreement as to all the material facts except those relating to valuation. The respondent’s position is that the purported incorporation of the Hutterische Bruder Gemeinde in 1905 did not result in the creation of a new corporation but was merely the continuation of an already existing corporation, the Ho.derische Bruder Gemeinde created under the laws of the Territory of Dakota in the year 1874; that the property in question was paid in to the corporation in the year 1874; and that since its value at that time can not now be ascertained satisfactorily the corporation’s tax liability for the year 1918 has been properly computed under the provisions of sections 327 and 328 of the Revenue Act of 1918. Section 326 of the Revenue Act of 1918 reads in part as follows: (a) That as used in this title the term “invested capital” for any year means (except as provided in subdivisions (b) and (c) of this section) : (1) Actual cash bona fide paid in for stock or shares; (2) Actual cash value .of tangible property, other than cash, bona fide paid in for stock or shares, at the time of such payment, but in no case to exceed the par value of the original stock or shares specifically issued therefor, unless the actual cash value of such tangible property at the time paid in is shown to the satisfaction of the Commissioner to have been clearly and substantially in excess of such par value, in which case such excess shall be treated as paid-in surplus: * * * (3) Paid-in or earned surplus and undivided profits; not including surplus and undivided profits earned during the year. Section 327 of the Revenue Act of 1918 reads in part as follows: That in the following cases the tax shall be determined as provided in section 328: (a) Where the Commissioner is unable to determine the invested capital as provided in section 326. The articles of incorporation filed by the new company in 1905 and those incident to the incorporation of the old company under the laws of the Territory of Dakota were materially different. The old corporation had a capital stock of $20,000. The new corporation had no capital stock. The management of the old corporation was by a board of directors; that of the new corporation was by trustees. In the original articles of incorporation the title “ Hoderische Bruder Gemeinde ” appeared, which is, as to the spelling of the first word of the title, said to have been in error, and in the new corporation’s articles of incorporation the title appeared as “ Hutterische Bruder Gemeinde.” During the year 1906 the old corporation transferred to the new corporation by deed all of its assets and the new corporation continued to carry on the business in practically the same way as had the old company. *774The question, therefore, is whether, within the meaning of section 326 ,of the Revenue Act of 1918, the property, the value of which the petitioners seek to include in invested capital for 1918, was “ paid in ” during the year 1906. Or, in other words, whether, for the purpose of determining invested capital, the apparent incorporation of the new company under the laws of the State of South Dakota in 1905 resulted in the creation of a new corporate entity, or whether it was merely a continuation of the old corporation created under the laws of the Territory of Dakota. An Act of Congress, approved February 22, 1889, provided for the division of the Territory of Dakota into the States of North Dakota and South Dakota and for the admission of these States into the Union. The constitution adopted by the State of South Dakota in 1889 provided, in article 26, section 1, as follows: That no inconvenience may arise from the change of the territorial government to the permanent state government, it is hereby declared that all writs, actions, prosecutions, claims and rights of individuals, and all bodies corporate, shall continue as if no change had taken place in this government; * * * The statutes of the State of South Dakota make provision both for the organization of corporations (see sections 8757 to 8763, South Dakota Revised Code, 1919) and for the amendment of the articles of incorporation of any corporation created under the laws of the Territory of .Dakota or the State of South Dakota. (See sections 8766 to 8771, South Dakota Revised Code, 1919.) In securing its present charter the Hutterische Bruder Gemeinde proceeded under the provisions of the statute authorizing the organization of new corporations. So far as the record shows the old corporation created under the laws of the Territory of Dakota continued to exist after the new company’s incorporation. We know that in the year 1906 the old corporation transferred by deed to the new corporation certain assets, among which was the property now under consideration. The facts are undisputed that the incorporation of the Hutterische Bruder Gemeinde under the laws of the State of South Dakota in 1905 was regular and complete. There is no allegation or evidence of fraud or other irregularity. The transactions occurred prior to the existence of any profits-tax laws so that there is no question of tax evasion. In support of his contention that there was not created a new corporation in the year 1905 the respondent quotes from 14 O. J. 197, as follows: Tbe mere amendment of a charter or articles of incorporation does not create a new corporation or otherwise aifeet the identity of the corporation, or its existing rights of action, property rights, or liabilities; and this is true even where the amendment is made by the substitution of a new charter, *775if the manifest intention is to amend merely and not to create a new corporastion. * * * (Italic supplied.) This rule seems to us to strengthen the petitioner’s position. Certainty it was the apparent intention of the parties acting for the Hutterische Bruder Gemeinde to create a new corporation and there is nothing in the evidence to indicate that there was any intention on their part merely to amend the articles of incorporation filed in 1874. The intention to create a new corporation is further shown by the fact that the old corporation executed, a formal deed in transferring the property to the new corporation. This would have been unnecessary in the case of an amendment. The case of Weiss v. Stearn, 265 U. S. 242, which the respondent cites, dealing with the effect of reorganization of corporations upon the income of stockholders, is not in point. Here we are concerned with the effect of a reineorp oration upon the invested capital of a corporation and not with any gain to the stockholders resulting from a reorganization. Even if we look to the substance rather than to the form of the corporate transactions, as respondent urges, it does not follow that we must reach a different'conclusion. “Invested capital ”, as the term is used in the Revenue Act of 1918, is purely a statutory concept. Substance is itsejf in this instance largely a matter of form. Since the Hutterische Bruder Gemeinde was regularly and lawfully incorporated under the laws of the State of South Dakota in the year 1905, and since the property in question was transferred to it by its predecessor corporation during the following year, it is entitled, under the provisions of section 326(a)(3) of the Revenue Act of 1918 above quoted, to include in its invested capital for the taxable year the value of such property at the time paid in in 1906. Judgment will be entered under Rule 50.

2020-01-17 22:01:36.265684+00

Fossan

*779OPINION. Yan Fossan: It is clearly established that the amount of petitioner’s inventory on December 31,1919, was $27,528.41. The closing inventory of one year is the opening inventory of the next. Ashtabula Bow Socket Co., 2 B. T. A. 306. Consequently, this sum is the correct inventory figure for January 1, 1920. It was so considered and treated by the petitioner on its books and constituted the basis of its income-tax return for 1920. The inventory account contains the erroneous date of February 1, 1920, due to the fact that a new set of books was opened for the petitioner on or about that date. Entries in the merchandise inventory account were made yearly. We are convinced that the sum named is a proper inventory figure for January 1, 1920, and that any deduction therefrom is unwarranted. Therefore, we disapprove the respondent’s action in reducing the opening inventory by $9,600. The respondent added to the petitioner’s income for January, 1920, the sum of $1,010.57, on the theory that its return for that *780year was made on the basis of 11 months. The petitioner’s balance sheet of February 1, 1920, showed earnings or surplus of $2,021.14, which the respondent arbitrarily assumed represented the earnings of the petitioner during the year 1919 and the month of January, 1920, and prorated them equally to those periods. The evidence discloses that the said sum of $2,021.14 was the income of the petitioner for the year 1919, properly returned by it as such and treated as surplus as of January 1, 1920, in Schedule K of its return for the year 1920. The erroneous entry of this item under date of February 1,1920, was occasioned by the circumstances mentioned above. Therefore, we conclude that the sum of $1,010.57 did not constitute income for January, 1920, and the respondent’s action in so treating it was erroneous. As to the alleged bad debt we are unable to find that respondent erred. When issue is joined as to the allowability of a deduction of an alleged bad debt the burden is on the petitioner to prove both the fact of worthlessness and the charge-off during the year. Alemite Die Casting & Mfg. Co., 1 B. T. A. 548; George P. Rowell, 12 B. T. A. 1197; Higginbotham-Bailey-Logan Co., 8 B. T. A. 566. Here some time during the year petitioner determined the account to be worthless but took no steps looking to a charge-off at that time. Later in the year, by agreement with the debtor, petitioner took over the property of the debtor and paid off the mortgage thereon. This action was apparently motivated by the thought that, property then being at low market, by securing the title to the property petitioner would be able later to work out its account in whole or in part. After thus taking title to the property petitioner nevertheless charged off the entire debt as worthless at the close of the taxable year. We are not persuaded that this purchase of the property by petitioner was, as contended by it, a wholly independent venture totally disassociated with the existence of the alleged bad debt. It appears more in the nature of an undertaking to assure and secure the payment of the debt. In such a situation we are unable to agree with petitioner’s contention that at the time of the charge-off the debt had been imoperly ascertained to be worthless or that it was in fact worthless. We affirm the respondent on this point. Judgment will be entered under Rule 50.

2020-12-01 14:08:12.881385+00

https://supremecourt.nebraska.gov/sites/default/files/a19-1201m.pdf

IN THE NEBRASKA COURT OF APPEALS MEMORANDUM OPINION AND JUDGMENT ON APPEAL (Memorandum Web Opinion) SANCHEZ V. SANCHEZ NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E). AARON P. SANCHEZ, APPELLEE, V. LAURA B. SANCHEZ, APPELLANT. Filed December 1, 2020. No. A-19-1201. Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge. Affirmed. Steffanie J. Garner Kotik, of Kotik & McClure Law, for appellant. Jeanelle S. Kleveland, of Kleveland Law Office, for appellee. PIRTLE, Chief Judge, and MOORE and RIEDMANN, Judges. MOORE, Judge. INTRODUCTION Laura B. Sanchez appeals from an order entered by the District Court for Lancaster County, modifying a decree of dissolution by increasing her child support obligation. For the following reasons, we affirm the decision of the district court. BACKGROUND The district court entered a decree of dissolution on July 11, 2017, dissolving the marriage between Laura and Aaron P. Sanchez. Two children were born to the marriage. The parties were awarded joint legal custody, while Aaron was awarded primary physical custody. The parenting plan set forth in the original decree ordered the parties to follow a 9 day/5 day parenting plan for every 14 days, and provided for alternating weekly summer parenting time, together with various holiday parenting time. Laura was ordered to pay $500 per month in child support for two children, and $352 per month for one child, based on her gross monthly income of $5,015.68 at the time. -1- The child support calculation attached to the decree indicates that the support was based upon the joint physical custody worksheet (worksheet 3) and the amount ordered of $500 for two children was slightly less than the calculated support owed by Laura of $544 per month for two children. Laura was also ordered to pay an $8,000 equalization judgment as part of the property division. On July 8, 2019, Laura filed a complaint seeking modification of both the parenting plan (seeking joint physical custody) and her child support obligation. Among other things, Laura alleged a material change in circumstances due to shift changes at work. Aaron filed an answer and counter complaint alleging a material change in circumstances due to Laura’s increased income, and seeking an increase in child support according to the child support guidelines. Aaron also sought a change in the parenting plan to a 10/4 schedule. Trial was held on September 30, 2019. The following evidence relating to the issue of child support was presented at trial. At the time of trial, Laura was employed by the Nebraska Department of Correctional Services as a corrections corporal. Laura had worked at the department for approximately 5 years. Laura testified that in the past 12 months, she typically worked 60-72 hours per week, including both mandatory and voluntary overtime. Laura explained that her employer first asks for volunteers to fill overtime hours, and in the event that there are not enough volunteers, the overtime hours are mandatorily filled on a rotating basis, taking into consideration seniority. Laura provided monthly self-prepared calendars for January through August 2019, showing the overtime hours that she regularly worked during those months, which were mostly voluntary overtime. Laura testified that her reason for working so many overtime hours was to help pay the equalization judgment ordered against her in the original decree, as well as to pay medical debt and to provide for the children. Laura testified that at the end of August 2019, she elected in a bidding process to change her work schedule to allow her to work 12-hour shifts instead of 8-hour shifts, resulting in an extra day off each week, which schedule had begun by the time of trial. Her new schedule is Wednesday through Saturday, from 6 a.m. to 8 p.m. At the time of trial, Laura was making $19.36 per hour, and testified that on her new schedule, she would be working an average of 48 hours per week, with 8 hours of that being overtime. Laura anticipated that this new schedule would likely last a year or until a new bid process was in place. Laura did not foresee continuing to work as many hours of overtime as before her schedule change. Laura testified that her average monthly income was expected to be $4,300. Laura did not provide any documentary evidence showing her change in work schedule or hours, nor did she provide a recent paystub reflecting the hours of overtime worked following the change in work schedule. Her most recent paystub for September was “missing” and not offered at trial, but she claimed that it would reflect her reduction in hours and pay due to the shift change. Aaron testified that Laura’s work hours changed in September and he knew Laura was still working regular overtime as recently as 4 days prior to trial, because one of her phone calls to the children was placed from her work phone number outside of her regular work hours. Aaron understood that mandatory overtime was imposed upon the department employees due to understaffing. Laura’s W-2 forms for 2017 and 2018 were received in evidence. In 2017, her annual gross income was $52,214, or $4,351 per month. Laura testified that she was not working a substantial amount of overtime in 2017. In 2018, her annual gross income was $62,670.55, or $5,222.55 per month. Laura’s most recent pay stub with a pay period ending August 18, 2019, showed an income -2- of $50,734 year-to-date for the 7.66 months of 2019, which computes to an average of $6,623.24 per month. Laura’s year-to-date overtime pay for 2019 was $20,755.39 according to the August 18 paystub. Laura submitted a proposed child support calculation based upon her estimated monthly gross earnings of $4,362.45. Utilizing the joint custody worksheet (worksheet 3), Laura’s share of child support would be $296 per month for two children and $181 for one child. Aaron submitted a proposed child support calculation based on Laura’s monthly earnings of $6,623.24 and using the basic income and child calculation (worksheet 1), resulting in a support obligation for Laura of $1,116 per month for two children and $706 for one child. On November 1, 2019, the district court entered an order finding a material change in circumstances not reasonably foreseen at the time of the prior order sufficient to warrant a modification. The court modified the provisions of the parenting plan to a 10/4 schedule and increased Laura’s child support obligation to $1,116 for two children, and $751 for one child, utilizing the basic income and support calculation (worksheet 1). Laura now appeals the child support modification. ASSIGNMENT OF ERROR Laura assigns that the district court erred in determining Laura’s child support calculation based on her previous overtime earnings when she had a change in work schedule and no longer expected to earn regular overtime. STANDARD OF REVIEW Modification of child support payments is entrusted to the trial court’s discretion, and although, on appeal, the issue is reviewed de novo on the record, the decision of the trial court will be affirmed absent an abuse of discretion. Hotz v. Hotz, 301 Neb. 102 , 917 N.W.2d 467 (2018). In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions with respect to the matters at issue. Id. A judicial abuse of discretion requires that the reasons or rulings of the trial court be clearly untenable insofar as they unfairly deprive a litigant of a substantial right and a just result. Id. ANALYSIS A party seeking to modify a child support order must show a material change in circumstances that (1) occurred subsequent to the entry of the original decree or previous modification and (2) was not contemplated when the decree was entered. Tilson v. Tilson, 307 Neb. 275 , 948 N.W.2d 768 (2020). Laura does not challenge the court’s finding of a material change in circumstances justifying a modification of child support. Rather, Laura argues that the district court erred by increasing her child support obligation based on her previous overtime wages when her work schedule materially changed and she is no longer expected to earn regular overtime. In general, child support payments should be set according to the Nebraska Child Support Guidelines. Hotz v. Hotz, supra. However, a court may deviate from the guidelines if its application in an individual case would be unjust or inappropriate. Hotz v. Hotz, supra. Deviations from the guidelines must also take into consideration the best interests of the child or children. Id. Child -3- support established under the Nebraska Child Support Guidelines is presumed correct, unless one or both parties present sufficient evidence to rebut that presumption. State on behalf of Mariah B. & Renee B. v. Kyle B., 298 Neb. 759 , 906 N.W.2d 17 (2018). In calculating child support, the total monthly income of a parent should include earnings “derived from all sources.” Neb. Ct. R. § 4-204 (rev. 2016). The guidelines also indicate that in calculating a parent’s total monthly income: The court may consider overtime wages in determining child support if the overtime is a regular part of the employment and the employee can actually expect to regularly earn a certain amount of income from working overtime. In determining whether working overtime is a regular part of employment, the court may consider such factors as the work history of the employee for the employer, the degree of control the employee has over work conditions, and the nature of the employer’s business or industry. § 4-204(B). If a parent earns or can reasonably expect to earn a certain amount of income on a regular basis, such income should be included in the child support calculation at divorce unless the presumption is rebutted by showing that the income is speculative in nature and that it is income over which the parent has little or no control. Noonan v. Noonan, 261 Neb. 552 , 624 N.W.2d 314 (2001). The court in Noonan v. Noonan held that the district court erred when it did not include a father’s overtime hours in a child support calculation, despite the fact that overtime was not mandatory, because the father consistently volunteered to work overtime hours. See id. In our de novo review, we can find no abuse of discretion by the trial court in its calculation of Laura’s child support obligation. The documentary evidence shows that Laura’s income has increased since the time of the decree and that she has regularly earned overtime pay since the time of the decree. While Laura argues that she is no longer able to work the amount of overtime she was previously working, there is nothing in the record to support this contention. Rather, Laura testified only that she did not foresee continuing to work as many hours of overtime following her schedule change. Laura did not offer any evidence to show that she had actually worked less hours since the schedule change nor did she offer evidence to show that there would not be voluntary overtime available to her or that she would not be mandatorily required to work additional overtime following her schedule change. Laura’s most recent paystub from August 2019, the month prior to the trial, showed 49.75 hours of overtime during a 2-week period. She did not produce her September paystub which she indicated would show reduced hours. Additionally, any change in Laura’s income had not lasted for 3 months at the time of trial and Laura did not establish that the change in her income would reasonably continue in the future. See Neb. Ct. R. § 4-217 (requiring change in financial circumstances which have lasted 3 months and can reasonably be expected to last additional 6 months to establish rebuttable presumption of material change of circumstances). On this record, we cannot say that the district court erred in using the most recent wage information available which included the overtime pay that Laura had been regularly receiving. Alternatively, Laura argues that the district court should have used a 3-year average of her income in computing her child support obligation. However, Laura did not request such an approach at trial; rather, she argued solely that her support should be based upon her anticipated lower earnings. The district court did not abuse its discretion in utilizing Laura’s current income in computing her child support obligation. -4-  CONCLUSION For the reasons set forth above, we conclude that the district court did not abuse its discretion in modifying Laura’s support obligation. AFFIRMED. -5-

2020-12-01 14:08:13.918545+00

https://supremecourt.nebraska.gov/sites/default/files/a20-037m.pdf

IN THE NEBRASKA COURT OF APPEALS MEMORANDUM OPINION AND JUDGMENT ON APPEAL (Memorandum Web Opinion) JOHNSON V. FRAKES NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E). JEREMY JOHNSON, APPELLANT, V. SCOTT FRAKES, DIRECTOR OF THE NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, AND TAGGART BOYD, WARDEN OF THE LINCOLN CORRECTIONAL CENTER, APPELLEES. Filed December 1, 2020. No. A-20-037. Appeal from the District Court for Lancaster County: JODI L. NELSON, Judge. Affirmed. Jeremy Johnson, pro se. Douglas J. Peterson, Attorney General, and James D. Smith for appellees. PIRTLE, Chief Judge, and MOORE and RIEDMANN, Judges. MOORE, Judge. INTRODUCTION Jeremy Johnson filed a declaratory judgment action in the district court for Lancaster County against Scott Frakes, the director of the Nebraska Department of Correctional Services (DCS), and Taggart Boyd, the warden of the Lincoln Correctional Center, where Johnson is serving consolidated sentences received in 1990, 1993, and 1997. Johnson asserts that his parole eligibility date should have been calculated by applying the good time law in effect at the time of his 1997 sentence, rather than that in effect at the time of his initial sentence. The district court found that Johnson’s sentences were appropriately consolidated and that DCS had used the correct good time law to calculate Johnson’s parole eligibility date. Accordingly, it granted summary judgment in favor of the defendants. Finding no error, we affirm. -1-  BACKGROUND In April 1990, Johnson was sentenced by the Douglas County District Court in case No. CR 125-704 (the 1990 case) for his conviction of two counts of second degree assault, use of a firearm to commit a felony, and first degree assault to a total term of imprisonment of 5 years 8 months to 13 years, with 170 days’ credit for time spent in jail. The good time law in effect at that time was Neb. Laws 1975, L.B. 567. See Neb. Rev. Stat. § 83-1 ,107 (Reissue 1987). In March 1993, while serving his sentence in the 1990 case, Johnson was sentenced by the Lancaster County District Court in case No. CR 84-246 (the 1993 case) for his conviction of third degree assault on a peace officer/DCS employee to a consecutive term of imprisonment of 0 to 1 year, bringing his total term of imprisonment to 5 years 8 months to 14 years. Johnson was granted parole in December 1995, and on April 22, 1996 he was declared to have absconded from parole supervision. On May 28, Johnson was arrested, and he was held in the Douglas County Department of Corrections until August 1, 1997. After his arrest, Johnson received a form notifying him that a preliminary hearing in the parole revocation proceedings due to his alleged parole violations was scheduled for June 9, 1996. On June 3, Johnson signed an attached request form, seeking to postpone the preliminary hearing in the revocation proceedings until the resolution of additional criminal charges pending against him in the Douglas County District Court. With respect to the pending criminal charges, in case No. CR 139-751 (the 1997 case), Johnson appeared before the district court on August 1, 1997, and was found guilty of possession of a deadly weapon by a felon, operating a motor vehicle to avoid arrest, two counts of discharging a firearm at an occupied building, and two counts of use of a deadly weapon to commit a felony. The court sentenced Johnson to a term of imprisonment totaling 60 to 100 years with 429 days’ jail time credit, and he was returned to DCS custody on August 1. The court’s judgment and sentence in the 1997 case was affirmed on appeal by this court, and the mandate was entered on September 15, 1998. See State v. Johnson, 7 Neb. App. xvi (No. A-97-914, June 24, 1998). On August 26, 1997 Johnson’s parole was formally revoked. DCS assessed 36 days’ “dead time” for the period when Johnson absconded from parole. DCS calculated 429 days’ jail time credit as ordered in the 1997 case, which it then offset as additional dead time because Johnson was already serving a state sentence and the jail time credit of 429 days would have resulted in a double credit. Accordingly, DCS assessed a total dead time of 465 days. Johnson’s aggregate consolidated sentence from the 1990, 1993, and 1997 cases totaled 65 years 8 months to 114 years’ imprisonment with 599 days’ jail time credit and 465 days’ dead time. Applying the good time law under L.B. 567 to the consolidated sentences, DCS calculated Johnson’s parole eligibility date as February 13, 2034, with a tentative release date of September 29, 2048. This includes 624 days’ loss of good time. On August 9, 2018, Johnson filed a complaint and motion for declaratory judgment pursuant to Neb. Rev. Stat. § 25-21 ,149 (Reissue 2016), alleging that the sentences he received in 1990, 1993, and 1997 were incorrectly consolidated and that his parole eligibility date was wrongly calculated by using L.B. 567. Instead, Johnson claimed that his parole eligibility date should have been calculated using Neb. Laws 1997, L.B. 364, the good time law in effect at the time his -2- sentence became final in the 1997 case. See Neb. Rev. Stat. § 83-1 ,107 (Cum. Supp. 1998). Johnson alleged that his actual parole eligibility date should be sometime in 2026. He asked the district court to declare that the defendants’ actions in incorrectly calculating his parole eligibility date violated his constitutional rights, order DCS to apply the “correct” good time law to his sentence, and award him the costs of his lawsuit. The defendants filed a motion for summary judgment, which was heard by the district court on December 13, 2019. The court received various exhibits, reflecting the facts set forth above, and heard argument from the parties. On December 31, 2019, the district court entered an order, granting the defendants’ motion for summary judgment and dismissing Johnson’s case with prejudice. After setting out its findings of material fact, the court reviewed Nebraska law regarding the consolidation of consecutive sentences. Because Johnson received his sentences in the 1997 case while he was still serving the consolidated sentences imposed in the 1990 and 1993 cases, the court found that DCS appropriately consolidated the sentences imposed in the 1997 case with those imposed in the previous cases. Next, the court determined that DCS correctly applied the good time law under L.B. 567 to Johnson’s total aggregate sentence to calculate his parole eligibility date. Citing Boston v. Black, 215 Neb. 701 , 340 N.W.2d 401 (1983), the court observed that the date of an offender’s initial incarceration is the date on which service of such consolidated sentence is deemed to begin. Because Johnson’s initial incarceration began in April 1990, his parole eligibility date on his entire consolidated sentence was correctly calculated using L.B. 567, the good time law in effect at that time. Finally, the court determined that the Nebraska Board of Parole had correctly assessed 465 days’ dead time. It also observed that any challenge to the parole board’s imposition of 465 days’ dead time was an impermissible collateral attack on an adjudication and could not be maintained in the present declaratory judgment action. ASSIGNMENTS OF ERROR Johnson asserts, restated, that the district court erred in (1) failing to grant him declaratory relief and ruling that his parole eligibility date was properly calculated under L.B. 567 and (2) retroactively applying L.B. 567 in violation of the Ex Post Facto Clauses of the U.S. and Nebraska Constitutions. STANDARD OF REVIEW An appellate court will affirm a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. First State Bank Neb. v. MP Nexlevel, 307 Neb. 198 , 948 N.W.2d 708 (2020). In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted and gives that party the benefit of all reasonable inferences deducible from the evidence. Id. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. Id. -3-  ANALYSIS Applicable Good Time Law. Johnson asserts that the district court erred in failing to grant him declaratory relief and ruling that his parole eligibility date was properly calculated under L.B. 567. On appeal, Johnson does not contest the consolidation of his sentences; however, he argues that his parole eligibility date should have been calculated by applying L.B. 364, the good time law in effect at the time of his 1997 sentence, rather than L.B. 567, the good time law in effect at the time of his initial sentence in 1990. Specifically, he argues that L.B. 364 should have been used for the calculation because “there was only six months remaining on his original sentence [consolidated sentences from 1990 and 1993]” when his 1997 sentence became final following his direct appeal in the 1997 case and because L.B. 567 was no longer in effect at that time. Brief for appellant at 5. We disagree with his assertion that L.B. 364 should have been used to calculate his parole eligibility date and find that the district court did not err in determining that L.B. 567 was the applicable good time law. Although the formula for calculating an offender’s parole eligibility date changed between the time when Johnson was sentenced in the 1990 case and when he was sentenced in the 1997 case, Nebraska law has provided at all relevant times for the consolidation of consecutive prison terms “whether received at the same time or at any time during the original sentence.” See Neb. Rev. Stat. § 83-1 ,110(2) (Reissue 1987 and Cum. Supp. 1998). In determining that Johnson’s 1990, 1993, and 1997 cases were correctly consolidated into a single sentence for purposes of calculating good time and that the applicable good time law was the law in effect when Johnson began serving his consolidated sentence, the district court cited Boston v. Black, 215 Neb. 701 , 340 N.W.2d 401 (1983). In Boston, the Nebraska Supreme Court considered the calculation of good time credits for offenders serving consolidated sentences who had incurred additional sentences due to additional convictions, as well as the due process arguments raised by some of those offenders. In that case, the Supreme Court stated that “any consecutive terms an offender receives while incarcerated are to be consolidated with any other sentence by adding the minimum terms together and adding the maximum terms together.” Boston v. Black, 215 Neb. at 704 , 340 N.W.2d at 405 . The court determined that § 83-1,110 defines an offender’s sentence, for the purpose of good time computations, as the sum of all sentences he receives, regardless of when incurred. Boston v. Black, supra. The court also observed that the date of an offender’s initial incarceration is the date on which service of such consolidated sentence is deemed to begin. Id. The offenders in Boston argued that the application of the good time law in effect at the time of their initial sentences rather than that in effect at the time of their subsequent offenses was not consistent with due process. The Supreme Court found the due process argument unpersuasive and stated, “The fact of the matter is that application of the law embodied in [the law in effect at the time of their initial sentences] to determine offenders’ good time rights took place not at the time they were convicted of the subsequent offenses but at the time they began serving their initial sentences.” Id., 215 Neb. at 710 , 340 N.W.2d at 407-08 . See, also, Luxford v. Benson, 216 Neb. 115 , 341 N.W.2d 925 (1983) (offender’s sentence, for purpose of good time computations, is sum of all sentences regardless of when incurred); Richardson v. Clarke, 2 Neb. App. 575 , 579, 512 -4- N.W.2d 653, 656 (1994) (“[f]or consolidated sentences, good time applicable to the initial sentence is applicable to the entire sentence”). Johnson asserts that his consolidated sentence in the 1990 and 1993 cases expired on March 28, 1999 (exhibits in the record show a “TRD” of March 28, 1999 after consolidation of the sentences in the 1990 and 1993 cases). Next, Johnson observes that his sentence in the 1997 case did not begin to run until the expiration of his previously consolidated sentences. See State v. Harms, 304 Neb. 441 , 934 N.W.2d 850 (2019) (when sentence is pronounced upon prisoner already serving sentence from another court, second sentence does not begin to run until previous sentence has expired, unless court pronouncing second sentence specifically states otherwise). Johnson also observes that his sentence in the 1997 case did not become final until entry of the appellate mandate in September 1998. See State v. Nollen, 296 Neb. 94 , 892 N.W.2d 81 (2017) (defendant’s sentence becomes final on date that appellate court enters its mandate concerning appeal, if there is appeal). Based on the above assertion and observations, Johnson argues first that L.B. 567 should not have been applied to calculate his good time after consolidation of his sentence in the 1997 case with his previously consolidated sentences because at the time that his 1997 sentence became final “there was only six months remaining on his original sentence of 14 years [consolidated sentences from 1990 and 1993].” Brief for appellant at 5. Johnson also argues that because L.B. 364 was the good time law in effect when he began serving his sentence in the 1997 case, it should have been applied to calculate his parole eligibility date. Johnson’s arguments ignore the fact that once sentences are consolidated, the date of an offender’s initial incarceration is the date on which service of the consolidated sentence begins. See § 83-1,110(2); Boston v. Black, 215 Neb. 701 , 340 N.W.2d 401 (1983). Once Johnson’s 1997 sentence was consolidated with the previous sentences, the applicable good time law to calculate Johnson’s parole eligibility date was that in effect at the time of his initial incarceration in 1990. Johnson also cites State v. Schrein, 247 Neb. 256 , 526 N.W.2d 420 (1995) for his argument that he should receive the benefit of the good time law in effect at the time his 1997 sentence became final. However, Schrein concerned the issue of what law applies when the good time law is revised during the pendency of a defendant’s appeal. It did not consider the issue of which good time law applies to individuals serving consolidated sentences and is thus inapplicable to this case. The district court did not err in determining that Johnson’s sentences in the 1990, 1993, and 1997 cases were properly consolidated and that L.B. 567 was the applicable good time law. Accordingly, its grant of summary judgment in favor of the defendants was proper. Ex Post Facto Clauses. Johnson asserts that the district court erred in retroactively applying L.B. 567 in violation of the Ex Post Facto Clauses of the U.S. and Nebraska Constitutions. Johnson did not raise the issue below of whether application of L.B. 567 to calculate his parole eligibility date presented a violation of the ex post facto clause. An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court. In re Guardianship & Conservatorship of J.F., 307 Neb. 452 , 949 N.W.2d 496 (2020). Regardless, this case does not present the retroactive application of a law in violation of the Ex Post Facto Clause. -5-  An ex post facto law is a law which purports to apply to events that occurred before the law’s enactment and which disadvantages a defendant by creating or enhancing penalties that did not exist when the offense was committed. State v. Jenkins, 303 Neb. 676 , 931 N.W.2d 851 (2019), cert. denied ___ U.S. ___, 140 S. Ct. 2704 , 206 L. Ed. 2d 844 (2020). A subsequently enacted good time law violates the Ex Post Facto Clause if it is both retrospective and more onerous than the law in effect on the date of the offense. See Luxford v. Benson, 216 Neb. 115 , 341 N.W.2d 925 (1983). See, also, Weaver v. Graham, 450 U.S. 24 , 101 S. Ct. 960 , 67 L. Ed. 2d 17 (1981). Johnson’s claim does not fulfill the first requirement of retrospection necessary to satisfy this test. The good time law found in L.B. 567 was not applied to crimes occurring before its enactment. Instead, L.B. 567 was applied in this case to Johnson’s crimes and consolidated sentences all occurring after its enactment. Johnson’s assignment of error fails. CONCLUSION Because Johnson’s sentences were appropriately consolidated and the district court correctly determined that L.B. 567 was the applicable good time law, the district court properly granted summary judgment on that basis and dismissed Johnson’s declaratory judgment action with prejudice. The judgment of the district court is affirmed. AFFIRMED. -6-

2021-09-01 13:03:54.583376+00

https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2017vv1554-77-0

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: August 11, 2021 ************************* CHERYL DAVID, as personal * No. 17-1554V representative of the estate of * FRANCES LABONTE, * * Special Master Sanders Petitioner, * v. * * SECRETARY OF HEALTH * Decision on Proffer; Damages; Influenza AND HUMAN SERVICES, * (“Flu”) Vaccine; Guillain-Barré * Syndrome (“GBS”) Respondent. * * ************************* Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for Petitioner. Kyle E. Pozza, U.S. Department of Justice, Washington, DC, for Respondent. DECISION AWARDING DAMAGES1 On October 18, 2017, Frances Labonte (“the decedent”) filed a petition for compensation under the National Vaccine Injury Compensation Program2 (“Vaccine Program” or “Program”). 42 U.S.C. § 300aa-10 to 34 (2012). The decedent alleged that the influenza (“flu”) vaccine she received on October 28, 2014, caused her to develop Guillain-Barré Syndrome (“GBS”). Pet.at 1, ECF No. 1. Respondent filed his Rule 4(c) report on October 23, 2018. Resp’t’s Report, ECF No. 34. Respondent stated that Petitioner fulfilled the requirements set forth in the Vaccine Injury Table and the Qualifications and Aids to Interpretation and recommended compensation in this case. Id. at 1, 3. Respondent specified that “[t]he scope of damages to be awarded is limited to [the decedent’s] GBS and its related sequelae only.” Id. at 3. He noted that “Petitioner did not allege, 1 This decision shall be posted on the United States Court of Federal Claims’ website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the Internet. In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other information that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, the I agree that the identified material fits within the requirements of that provision, such material will be deleted from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub L. No. 99-660, 100 Stat. 3755 (“the Vaccine Act” or “Act”). Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). nor would the current record support that [the decedent’s] GBS caused or contributed to her death.” Id. at 3 n.1. On June 3, 2021, I issued a Ruling on Entitlement consistent with Respondent’s Rule 4(c) report. ECF No. 70. On July 26, 2021, Respondent filed a Proffer on Award of Compensation (“Proffer”). ECF No. 72. Based on the record as a whole, the undersigned finds that Petitioner is entitled to an award as stated in the Proffer. Pursuant to the terms stated in the Proffer, attached as Appendix A, the undersigned awards Petitioner: A. A lump sum payment of $225,000.00 [for pain and suffering] in the form of a check payable to [P]etitioner on behalf of the estate of [the decedent]; and B. A lump sum payment of $101,800.14 representing compensation for satisfaction of the Commonwealth of Massachusetts Medicaid lien, in the form of a check payable jointly to [P]etitioner and: Commonwealth of MA – EOHHS ESTATE RECOVERY P.O. Box 417819 Boston, MA 02241-7819 Petitioner agrees to endorse the check to “Commonwealth of Massachusetts – ERU” for satisfaction of the Medicaid lien. Id. at 2–3. The parties agree that “[t]he above amounts represent all elements of compensation to which [P]etitioner would be entitled under 42 U.S.C. § 300aa-15(a). Id. at 2. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of court SHALL ENTER JUDGMENT herewith.3 IT IS SO ORDERED. s/Herbrina D. Sanders Herbrina D. Sanders Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice renouncing the right to seek review. 2  IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ************************************* CHERYL DAVID, as personal * Representative of the Estate of * FRANCES LABONTE, deceased, * * Petitioner, * No. 17-1554V * SPECIAL MASTER v. * HERBRINA D. SANDERS * SECRETARY OF HEALTH AND * HUMAN SERVICES, * * Respondent. * ************************************* PROFFER ON AWARD OF COMPENSATION On October 23, 2018, respondent filed a Vaccine Rule 4(c) report concluding that Frances Labonte suffered an injury that is compensable under the National Childhood Vaccine Injury Act of 1986, as amended, 42 U.S.C. §§ 300aa-10 to -34, that is, Guillain-Barré syndrome (“GBS”), as defined in the Vaccine Injury Table. 1 Accordingly, on June 3, 2021, the Special Master issued a Ruling on Entitlement. I. Compensation for Vaccine Injury-Related Items A. Pain and Suffering Based upon the evidence of record, respondent proffers that petitioner, as representative of the estate of Frances Labonte, should be awarded a lump sum of $225,000.00 for pain and suffering, in the form of a check payable to petitioner. Petitioner agrees. 1Respondent noted that the scope of damages was limited to Ms. Labonte’s GBS and related sequela only, i.e. petitioner’s original petition did not allege, nor does the record support, that Ms. Labonte’s GBS caused or contributed to her death. See Ruling on Entitlement, ECF No. 70.  B. Medicaid Lien Respondent proffers that petitioner should be awarded funds to satisfy the Commonwealth of Massachusetts Medicaid lien in the amount of $101,800.14, which represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the Commonwealth of Massachusetts may have against any individual as a result of any Medicaid payments the Commonwealth of Massachusetts has made to or on behalf of Frances Labonte from the date of her eligibility for benefits through the date of judgment in this case as a result of her alleged vaccine-related injury suffered on or about November 13, 2014, under Title XIX of the Social Security Act. The above amounts represent all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees. II. Form of the Award The parties recommend that compensation provided to petitioner should be made through two lump sum payments described below, and request that the Special Master’s decision and the Court’s judgment award the following: 2 A. A lump sum payment of $225,000.00 in the form of a check payable to petitioner on behalf of the estate of Frances Labonte; and B. A lump sum payment of $101,800.14, representing compensation for satisfaction of the Commonwealth of Massachusetts Medicaid lien, in the form of a check payable jointly to petitioner and: Commonwealth of MA – EOHHS ESTATE RECOVERY P.O. Box 417819 Boston, MA 02241-7819 Petitioner agrees to endorse the check to “Commonwealth of Massachusetts – ERU” for 2 Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court for appropriate relief. 2 satisfaction of the Medicaid lien. Petitioner is a competent adult. Evidence of guardianship is not required in this case. Respectfully submitted, BRIAN M. BOYNTON Acting Assistant Attorney General C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division /s/ Kyle E. Pozza_____________ KYLE E. POZZA Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington D.C. 20044-0146 Tel: (202) 616-3661 E-mail: [email protected] Date: July 26, 2021 3

2020-12-01 14:08:16.962396+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007495PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/01/2020 08:08 AM CST - 152 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 Ashley R. Smith, appellee, v. Gerald E. King, Jr., appellant. ___ N.W.2d ___ Filed November 24, 2020. No. A-19-999. 1. Child Custody: Appeal and Error. An appellate court reviews child custody determinations de novo on the record, but the trial court’s deci- sion will normally be upheld absent an abuse of discretion. 2. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court bases its decision upon reasons that are untenable or unrea- sonable or if its action is clearly against justice or conscience, reason, and evidence. 3. Contracts: Compromise and Settlement. A settlement agreement is subject to the general principles of contract law. 4. ____: ____. To have a settlement agreement, there must be a definite offer and an unconditional acceptance. 5. Child Support: Appeal and Error. An appellate court reviews child support determinations de novo on the record, but the trial court’s deci- sion will be affirmed absent an abuse of discretion. 6. Paternity: Attorney Fees: Appeal and Error. An award of attorney fees in a paternity action is reviewed de novo on the record to determine whether there has been an abuse of discretion by the trial judge. Absent such an abuse, the award will be affirmed. 7. Paternity: Child Custody: Visitation: Moot Question. Any issues regarding temporary custody and parenting time become moot upon entry of the decree of paternity establishing permanent custody and par- enting time. 8. Contracts: Parties: Intent. To create a contract, there must be both an offer and an acceptance; there must also be a meeting of the minds or a binding mutual understanding between the parties to the contract. 9. Contracts: Parties. A binding mutual understanding or meeting of the minds sufficient to establish a contract requires no precise formality or express utterance from the parties about the details of the proposed  - 153 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 agreement; it may be implied from the parties’ conduct and the sur- rounding circumstances. 10. Contracts: Parties: Intent. The determination of the parties’ intent to make a contract is to be gathered from objective manifestations—the conduct of the parties, language used, or acts done by them, or other pertinent circumstances surrounding the transaction. 11. Contracts: Parties. A fundamental and indispensable basis of any enforceable agreement is that there be a meeting of the minds of the parties as to the essential terms and conditions of the proposed contract. 12. Compromise and Settlement. An alleged oral compromise and settle- ment agreement not made in open court is unenforceable where it is in violation of the statute of frauds or in violation of a court rule requiring all stipulations and agreements of counsel or parties to a suit to be in writing, signed by the parties or their attorneys. 13. ____. A settlement agreement made in open court on the record, agreed to by all of the parties to the litigation and approved by the court, is enforceable. 14. Attorney and Client: Compromise and Settlement. Although lawyers retain apparent authority to make procedural and tactical decisions through the existence of the attorney-client relationship, a lawyer cannot settle a client’s claim without express authority from the client. 15. ____: ____. Where there has been nothing beyond a mere employment or retainer of the lawyer to represent the client in a cause and the lawyer has acquired no other authority to enter into a settlement (such as acqui- escence in open court), if the lawyer seeks to enter a settlement, the opposing party should ascertain whether the lawyer has received actual authority from the client to take such action. 16. Attorney and Client: Compromise and Settlement: Appeal and Error. Disputes over a lawyer’s authority to settle are factual issues to be resolved by the trial court; however, an appellate court will not set aside a trial court’s factual findings regarding settlement disputes unless such findings are clearly erroneous. 17. Trial: Evidence: Appeal and Error. The reopening of a case to receive additional evidence is a matter within the discretion of the district court and will not be disturbed on appeal in the absence of an abuse of that discretion. 18. Trial: Time. In a case tried to the court without a jury, a motion for specific findings of fact must be made before final submission of the case to the court. 19. Child Custody. When deciding custody issues, the court’s paramount concern is the child’s best interests.  - 154 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 20. Child Support: Rules of the Supreme Court. A trial court has the authority to order a parent to pay the categories of expenses speci- fied in Neb. Rev. Stat. § 42-364.17 (Reissue 2016), in addition to the monthly child support obligation calculated under the guidelines. Appeal from the District Court for Douglas County: Gary B. Randall, Judge. Affirmed as modified. Sandra Stern for appellant. Chris Pomerleau, of Nebraska Legal Group, for appellee. Moore, Chief Judge, and Bishop and Welch, Judges. Bishop, Judge. I. INTRODUCTION Gerald E. King, Jr., appeals from the decree of paternity entered by the Douglas County District Court which granted Ashley R. Smith primary physical custody of their two chil- dren, subject to Gerald’s parenting time of every other weekend and one evening on the “off” week. Gerald assigns numerous errors related to the temporary hearing and order, the amount of parenting time he received in the decree, and the award of attorney fees to Ashley. He also challenges the district court’s decision to not grant his in forma pauperis (IFP) request for transcription of court hearings or, alternatively, to not order Ashley to pay for the same so that he could adequately prepare for his motion for new trial. We affirm as modified. II. BACKGROUND Gerald and Ashley were in a relationship for a number of years, but never married. During the course of their relation- ship, they had two children: a son, Cipher King, born in 2005, and a daughter, Phoenix King, born in 2011. The parties ended their relationship in 2014 or 2015, and they proceeded for some time without court involvement regarding custody and child support. Ashley ultimately filed a complaint for establish- ment of paternity, custody, and support in 2017.  - 155 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 1. Initial Pleadings and Temporary Hearing and Order On June 8, 2017, Ashley filed a complaint for establishment of paternity, custody, and support. She alleged that Gerald was the father of Cipher and Phoenix. Ashley sought sole legal and physical custody of the children, and she asked that child sup- port be ordered in accordance with the Nebraska Child Support Guidelines. She also asked that Gerald be required to pay her attorney fees. After a September 1, 2017, hearing on temporary matters at which Gerald appeared pro se and Ashley appeared with counsel, the district court entered an order on September 7. The court determined that Gerald was the children’s father. Ashley was awarded temporary custody of the children; how- ever, Gerald was awarded parenting time “every other weekend from [Friday] after school, or 3:00pm, whichever is earliest,” through Sunday at 7 p.m., and he was also awarded the “‘off’ Thursday evening from after school, or 3:00pm, whichever is earliest through 8:00pm.” Gerald was ordered to pay child sup- port in the amount of $706 per month, beginning September 1. He was also ordered to pay 40 percent of any noncovered med- ical expenses after Ashley had paid the first $480 per calendar year on behalf of the child and 40 percent of any work- and education-related childcare expenses. On March 8, 2018, Gerald, now with counsel, filed an answer and “cross-complaint” wherein he acknowledged his paternity and sought joint legal and physical custody of the children, with equal parenting time for the parties. He asked that child support be ordered in accordance with the Nebraska Child Support Guidelines. On March 30, Gerald filed a motion for temporary orders seeking equal parenting time pending trial. On June 6, he filed a motion asking the district court to set a trial date and to award him summer parenting time pending the trial. And on June 12, he filed a motion to amend the temporary child support order retroactive to September 1, 2017. According to the “Judges Notes” appearing in our  - 156 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 transcript, the district court denied any further temporary hear- ings pending trial. On August 2, 2018, Ashley filed a contempt action against Gerald for failure to follow the September 2017 temporary order regarding parenting time and child support. The resolu- tion of this action does not appear in our record. 2. Trial Begins Trial began on September 28, 2018, and continued on October 1. Both parties appeared with counsel. Several wit- nesses testified, and numerous exhibits were received into evidence. According to Ashley’s testimony, she and Gerald were in a relationship on and off for 11 years. They stopped living together in October 2015, but Gerald believed it was 2014. Prior to when they stopped living together, Ashley was the primary caretaker for the children. She fed them, bathed them, helped them with their schoolwork, and provided the majority of their transportation. Ashley was also paying for all of the childcare costs and children’s activities. However, according to Gerald’s testimony, they shared parenting and household duties and he also paid for household expenses; he even stated that when Phoenix was born, he was the primary caretaker because he was not working at the time. After the parties stopped living together, Ashley and the children moved in with her mother, where they have remained. Gerald stayed with a friend for a few months. Ashley stated Gerald would “just call” and ask to see the children, and “[i]t would just be kind of sporadic.” However, according to Gerald, he saw the children “daily” while staying with his friend, but he did not keep them overnight. After staying with his friend, Gerald lived in a few different places. For the first few months, Gerald had the children every weekend. Then the parties tried alternating parenting time on a daily basis, but that did not last very long. Then, beginning in February 2017, the parties alternated parenting time on a weekly basis. Ashley testified that she “never had a say in [their] arrangements”  - 157 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 during the alternating daily or weekly parenting time. Ashley filed the paternity action in June, and the temporary custody and parenting time schedule was put into place in September, wherein Ashley got primary physical custody and Gerald had parenting time every other weekend and every other Thursday. However, Gerald would occasionally keep the children beyond his parenting time without Ashley’s agreement; Ashley called the police two times and was able to get them. Gerald had also picked the children up from school on a day he did not have parenting time. Exhibit 8 contains text messages between Gerald and Ashley. We include a sampling of those text messages here, includ- ing all typographical and grammatical errors. On September 11, 2017 (year based on Ashley’s testimony), Gerald and Ashley texted: [Ashley:] . . . [I]t is not your day. If I need to get the police involved I will I will be picking cipher up when I leave here at 3. [Gerald:] You can spend ya day all mad cuz I got him and flip but that’s on you me and cipher is gonna have a good time keep ya bad vibes to yaself [Ashley:] It’s done. You did this [Gerald:] Call the cops now then save some time I wel- come you doing that while I’m with him lol Cops cops cops You think you can scare me with cops lol lol lol [Ashley:] I am not trying to scare anyone, but this is exactly why I went to court so when you do this BS I have a leg to stand on I will be there to get cipher at 3 .... [Gerald:] Bitch this is my son fuck whatever you on If I was hurting him or mistreating him or had him in danger then cool but flipping the fuck out cuz I’m simple with im yea go fuck ya self ....  - 158 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 You are a female that younger than me you have no power or authority over me I am sorry we didn’t work but you don’t get to decide when I see my kids cuz we didn’t[.] On September 12, Gerald texted, “I got one son and one daughter in this world that I helped create and bring into this world there’s no stranger thatbdont know me or my kids gonna dictate what I can and can’t do with them.” In October, the par- ties were arguing about parenting time and transportation and Gerald texted: You ain’t sacrificing shit it should be week to week this bullshit you on where you think you have the only right to OUR kids and how to raise them I don’t give two shits about a lawyer Judge or court none of them was involved in us making these kids and you can have them pump ya head but the real is you on bullshit[.] On October 11, the parties were again arguing over the parent- ing time schedule, and Ashley texted Gerald saying, “All of this is reported back to a judge.” Gerald replied: Haha report I don’t give a fuck either .... Report fuck the judge Report fuck ya lawyer Report fuck them all Report when my schedule change none of this every other week shit will apply Report these are my kids and they have zero authority over me Report how much of a bitch you are[.] During his testimony, Gerald said he sent the text messages because he was upset about the situation and wanted to spend more time with his children. Gerald agreed that he would follow court orders. However, he acknowledged that he had kept the children longer than his parenting time and that he had picked them up from school when it was not his day. Also, between September 1, 2017,  - 159 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 and June 2018, he paid a total of only around $1,050 in court- ordered child support. He said, “I had a house, kids, rent and stuff that was due. So I financially could not . . . .” He stated he also paid some money directly to the court after June 2018. (According to a Department of Health and Human Services payment history report, between June 26 and September 14, Gerald had paid $1,200; he never once paid his full monthly obligation.) Gerald acknowledged that he had not paid for any childcare; he said he did not know that child support and childcare were different. Gerald admitted receiving receipts for Phoenix’s childcare costs, but he denied receiving receipts for Cipher’s childcare costs. According to Ashley, Gerald had been physical with her on “multiple occasions.” Ashley said there had been “slaps to the face,” most recently 3 years ago, and “hair pulling,” most recently when she was 8 months pregnant with their daughter. According to Ashley, both children had witnessed incidents when Gerald was physical with her. Gerald had also called her names, like “bitch,” in front of the children. According to Gerald, there was “a lot of lies and embellishment” in Ashley’s testimony. He acknowledged that their relationship was not appropriate, and he confirmed that Ashley hit him multiple times. Ashley said she witnessed an incident when Gerald was “aggressive” and grabbed Phoenix’s arm when she tried to go to Ashley. And Cipher was crying and upset when he called and told her that Gerald “struck him for letting the dog out.” Ashley was also aware that Gerald smoked marijuana around the children; “this Sunday” Ashley picked Cipher up from Gerald’s house and “had to roll down the windows because [Cipher] reeked so heavily of marijuana.” Gerald testified that he was charged with possession of marijuana twice and con- firmed he was convicted of possession of marijuana, but he did not specify whether it was once or twice. Ashley acknowl- edged that she had smoked marijuana in the past, the last time being 4 to 5 years ago, and that at that time, she had smoked it in front of the children. Ashley also acknowledged she was  - 160 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 convicted of “DUI” 5 years ago, but said the children were not in the car at the time. Gerald testified that he has seen Ashley drive with the children after she had been drinking. Ashley’s mother, with whom Ashley and the children have lived for 4 or 5 years, testified that Ashley is an “amazing” par- ent and is “an absolutely wonderful role model.” The children are “extremely well-behaved.” As to Gerald’s temperament, Ashley’s mother said, “Numerous times I’ve heard him on the other end of a phone call conversation with Ashley knowing that the children were within earshot, and I could overhear such profanity and degrading language used to my daughter.” Ashley testified that she was asking for sole legal and physical custody. Ashley preferred that Gerald not have par- enting time on school nights because he did not have reliable transportation. She stated that when she was out of town for a week, their son was tardy three times. Additionally, it was important to Ashley that the children have consistency on school nights. However, Gerald said that “[t]here’s no concern” with him being able to get the children to school on time. He claimed it was Ashley or her mother who took the children to school late and caused them to be tardy three times during the current school year. Gerald wanted to have parenting time on an alter- nating weekly basis, like he had prior to the September 2017 temporary order. He thought it would be “fair” for both parents to have half of the time with the children because “there [were] no problems prior,” “no issues.” If the court was not inclined to give him equal parenting time, Gerald’s alternative proposal was for 6 out of every 14 nights—every other week from Friday at 8 a.m. to Wednesday at 8 a.m., and then overnight on the Tuesday of his “off week” (Tuesday at 8 a.m. to Wednesday at 8 p.m.). He also wanted parenting time on half of all school holidays and half of the summer. Gerald testified that he told Cipher what happened at court at the temporary hearing “[b]ecause his mother lies to him”; “before anything ever started,” she told Cipher everything was  - 161 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 going to stay the same. Gerald showed Cipher the affidavits that Ashley and her mother presented to the court at the tempo- rary hearing against Gerald. Text messages between Gerald and Ashley were received into evidence and reveal the following: Ashley texted Gerald, “Why would you bother cipher with our issues while he is at school, . . . [h]e is not your friend or your support - he is your child and he did not have to find out what is going on via text.” Gerald responded: He wanted to know what happened so I told him I let him read what you and ya mom said about me on the affidavit and all he should know the truth not the sugar coated lies you and ya momma tell him So when I’m. It around and he can’t come here for a week it because of you not me you did this all[.] Ashley replied, “[M]y affidavit is true.” Gerald told the children they would be testifying at trial. “What I told them is you guys need to tell the truth and this is your opportunity to express to the judge what you want. I don’t know what you want.” He said, “I did promise them that if I had more time with them then I can take more trips with them because they want to go places. And I express to them I don’t currently have the time to take them . . . .” The district court recessed for lunch on October 1, 2018, but never came back on the record that day. However, as revealed through subsequent motions and hearings, it appears that the district court met with the parties’ counsel in chambers after the lunch recess on October 1. The “Judges Notes” for October 2 appear in our transcript and state: “Matter came up for Trial, [named counsel] appeared as counsel of record. [Gerald’s counsel] to prepare a Decree.” The next action that appears in our record is a motion filed on October 5. 3. Motions and Hearing On October 5, 2018, Ashley filed a motion asking the dis- trict court to reconsider and amend its findings from the trial held on September 28 and October 1, to enlarge the record  - 162 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 to allow rebuttal witnesses and closing statements, to clarify the decision of the court, and to order a new trial. The district court and the parties’ counsel apparently met again in November 2018, but such proceedings do not appear in our record. However, the “Judges Notes” for November 16 appear in our transcript and state: “Matter came up for Motion to Clarify. Trial continued to 1/23/19 at 10a.m.” On November 28, Gerald filed a motion for entry of decree. He alleged that after trial was held on September 28 and October 1, his coun- sel was instructed to prepare a decree; his counsel forwarded a proposed decree and parenting plan to Ashley’s counsel on October 2; and Ashley filed a motion for clarification as to certain terms of the decree, which was heard before the court on November 16, and certain matters were clarified. Gerald alleged that the decree attached to his motion reflected the nature of the proceedings as well as the court’s findings and orders, with the exception that Gerald added a paragraph pro- viding that both parties shall be awarded 7 days parenting time of their choosing each year, to accommodate for special events that each parent may want to spend with the children. On November 29, 2018, Ashley again filed a motion asking the district court to reconsider and amend its findings from the trial held on September 28 and October 1, to enlarge the record to allow rebuttal witnesses and closing statements, to clarify the decision of the court, and to order a new trial. Gerald filed an objection to Ashley’s motion. At a hearing on December 4, 2018, the parties appeared on the foregoing motions. At this hearing, the district court stated, “I know we had a hearing in my office on October — I don’t know if it was October 5th or after that . . . .” Ashley’s counsel then stated, “[W]e came here [in November,] and the Court made a decision that we would schedule a two-hour opportunity for us in January [2019] to finish the testimony, not only of my client, but also of [Gerald] and allow the parties to submit their closing arguments.” Ashley’s counsel further stated, “So regarding [Gerald’s] motion to enter the decree,”  - 163 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 Ashley would object because the case has not been closed. The court stated: Well, let’s be clear. We had trial and you — the trial was not completed. We took a break. We had to get another date. I told both of you what I thought would be appro- priate based on the evidence that I’ve heard. You both then said okay. We’ll try to put together a decree. That was not on the record. And since then we’ve had another hearing in which you’ve disagreed as to what the two of you thought you had agreed to which the Court was going [sic] propose. I think that this is — I don’t think either one of you is correct a hundred percent. And appar- ently you feel like [Gerald’s counsel] is continuing to add things that your client was not willing to agree to. I think we’ll just finish the trial in January. Gerald’s counsel objected to “re-opening this matter.” The fol- lowing colloquy then took place. [Gerald’s counsel:] You’re right. We had a two-day trial. I had witnesses. [Ashley’s counsel] had witnesses. We had continued into the second day . . . . We had one more day slotted for that trial, and I had a couple wit- nesses and I was going to ask you to speak to the minor children. You told us at the beginning of the trial that you would if you deemed it to be necessary. So it wasn’t a hundred percent. It wasn’t a given. We proceeded through lunch. You called us back to your chambers and you said, Here’s what I am inclined to do. THE COURT: I said basically here’s what I’m thinking based on what I heard. [Gerald’s counsel:] Right. And based on that, I rep- resented to the Court, we’re fine with that, Your Honor. We will not present anymore witnesses. We rested. There was no request by [Ashley’s counsel] to put on additional witnesses, to present a rebuttal, to present a closing argument. In fact, [Ashley’s counsel] asked for clarifica- tion on certain things that you ordered. You were very specific in your orders. . . . You advised me [to] prepare  - 164 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 the decree. You ordered six days out of . . . 14 to [Gerald], eight days out of 14 to [Ashley]. You ordered joint custody — joint physical custody, sole legal custody to [Ashley]. You said whatever the guidelines say the guidelines say with regard to child support. . . . [T]here was a specific question about attorney’s fees. You said yes, anything related to the contempt matter. There was a specific question . . . about how much [Gerald] should pay towards arrears, and you said $300 a month, which I interpreted to be total arrears for child care and child sup- port, and we have a disagreement on what you intended. . . . I think my decree that’s submitted is 100 percent what you ordered, but for that paragraph. You said the parent- ing plan that the parties mediated. You said 50 percent of the summer. Those were all things that Your Honor stated in chambers. There wasn’t a court reporter. . . . The only arguable thing [we] didn’t do was closing, and [Ashley’s counsel] didn’t ask for it. And I highly doubt that his closing will change Your Honor’s opinion. . . . .... THE COURT: . . . . The issue is, you haven’t rested on the record. [Ashley’s counsel] wants more time. He doesn’t agree. And so I don’t think I can force the — we didn’t — we should have brought the parties out and entered the terms of that on the record, and then it would have been done. We didn’t do that. .... THE COURT: . . . . I’m just saying because it wasn’t completed in the proper way — and I’m taking responsi- bility for part of that — I think we have to finish the trial if [Ashley’s counsel] isn’t happy with it. I don’t think we have any other choice. I don’t think I can force the entry of this decree because we didn’t bring the parties out and put it on the record. And that’s on me. .... THE COURT: . . . . I mean, the bottom line is, when we had our conversation, I told you that based on what  - 165 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 I had heard because it was so close to being at the end, this is what I thought would likely happen. At that point in time, I don’t recall strong-arming anybody into saying this is what it should be, and I believe a settlement was reached. But because that wasn’t memorialized, because we didn’t come back out in the courtroom and put in on the record at that time, I don’t believe it’s enforceable by the Court. I think you get a chance to finish, if that’s what you want. [Ashley’s counsel:] It is what I want, Your Honor. And I also don’t want there to be a confusion about — it’s truly unfortunate that anybody that day thought there was a settlement. THE COURT: You said yes, I believe the case can be resolved because I told you what you [sic] thought was happening. You were in my office. It wasn’t on the record. I understand that. .... [Ashley’s counsel:] And in no way was [sic] speaking for my client agreeing to a settlement of — THE COURT: That’s why I’m not entering the decree. (Emphasis supplied.) 4. Trial Resumes Trial resumed on January 23, 2019. Gerald rested his case, with the exception that he still wanted the district court to speak to the children: “If after the case in chief you feel like you are not going to give [Gerald] at least six days out of 14, I would continue to ask you to speak with the children[,] [b]ut I will rest my case . . . .” Ashley’s counsel called Gerald to the stand. Gerald acknowledged that he and Ashley have had alterca- tions and that he has pushed her to the ground, but he claimed he pushed her in self-defense after she grabbed him by the hair and “pulled out a couple of [his] dreads.” He denied that the children witnessed the pushing incident, which he believed occurred in 2009, and he stated he had not been physical  - 166 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 with Ashley in “over seven, eight, nine years.” He also said he tries to refrain from having arguments with her via text message. Gerald testified that in September 2018, right before trial, he gave Cipher tickets to a professional football game in Kansas City, Missouri, for his birthday; the game was on October 28. The game was during Ashley’s weekend with the children, and although she said that Cipher could go, she “didn’t really specify how that was going to happen, which is what [Gerald] was trying to accomplish for months.” Because the game was at noon, Gerald wanted to pick Cipher up and drive to Kansas City the day before; Ashley said he could pick Cipher up the day of the game. When he arrived to pick Cipher up the day before the game, Ashley told Cipher that she would take him to the game, but “[Cipher] continued to proceed with me to my car. I didn’t force anything.” Gerald acknowledged that text messages received into evidence show his frustration with Ashley for changing her mind about letting Cipher go to the game. We include a portion of those text messages here, including all typographical and grammatical errors: [Ashley:] And it’s my weekend, my choice. If I said no he could not go you would have to accept that, but I am saying he can go Sunday morning drive two and a half hours to KC and be there by the 12 kickoff They are not leaving Saturday. Period [Gerald:] Watch us .... [Ashley:] It’s Sunday or nothing. .... [Gerald:] Sunday is not an option is the best way I can put it to I don’t care about the consequences will leave a Saturday[.] Gerald testified that he was frustrated that Ashley refused to work with him on their parenting schedule to accommodate  - 167 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 the trip. There was some testimony about his understanding of the parties’ parenting agreement following the second day of trial on October 1, 2018. We include the relevant exchanges here, although not necessarily in the order they occurred. Gerald’s counsel asked, “We had trial on September 28th and October 1st of 2018?” And Gerald responded, “Correct.” Gerald’s counsel further asked, “And we started a new parent- ing time schedule; is that correct?” Gerald again responded, “Correct.” Gerald’s counsel also asked him, “And the last court hearing that we had, the Court awarded you, your understand- ing was, six out of 14 days?” Gerald replied, “Correct.” During another exchange, the following colloquy was had: [Gerald’s counsel:] The last day of trial when the Court ordered that you would have this much time, you’re [sic] schedule wasn’t — [Ashley’s counsel:] Well, objection, Your Honor. That misstates facts not in evidence. The Court never ordered anything. [Gerald:] No. When the new order was put in, no. [Gerald’s counsel:] Let’s stop for a moment. Your Honor, I just want to . . . clarify for the record what the last — the previous day of trial was. I think I have it in the proposed decree, if I can look at that. October 1st. Gerald testified that he had given Cipher the football tickets as a birthday gift earlier in September, prior to trial. There was then discussion about Gerald’s plans to take Cipher to Kansas City a day earlier than Ashley desired: [Gerald’s counsel:] Okay. And there was really no Court order at that point, was there? [Gerald:] Not really. I mean, it was still confusing to me to understand what the Court order was, and I just figured we could be amicable, me and her, about the sit­ uation. She just refused to work with me. Gerald’s counsel asked, “You were going to start your week on/week off on a different weekend, but [Ashley] told you no specifically?” Gerald responded, “Correct. I tried to do that so we wouldn’t have this issue, but she made it so we would.”  - 168 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 During Ashley’s testimony, she said that when Gerald first bought the football tickets, he did not ask to purchase tickets for a game during her parenting time weekend. It was not until after Gerald gave the tickets to Cipher that Ashley realized the game fell on her weekend. “And then we went to court, and with the new arrangement, it wasn’t anything against Gerald,” but Ashley and the children had other plans that weekend; “it wasn’t intentional that I was trying to keep him away from [Cipher] on this weekend.” Ashley stated, “I have the same weekends I had before our October 1st order was put in.” Gerald testified that he took Cipher to the game and that he gave Ashley makeup parenting time the next weekend dur- ing his scheduled parenting time. Gerald said that prior to the game, he tried to work it out with Ashley “so we wouldn’t have this issue, but she made it so we would. . . . She knew we would come back here. This was all plotted.” He further stated, “I know she did it purposely. I’ve been with this woman for 11 years. I know her.” Ashley testified that she agreed Gerald could pick up Cipher the day of the game, and there was no reason they needed to leave the day before, but that is what happened. Gerald was also confronted with text messages he sent to Ashley in November 2017 wherein he used profanity, called her names, and told her to “Go suck a AIDS dick.” Again, Gerald testified that he was just upset at the time he sent the text messages. Gerald testified that he was still seeking “50/50” custody and parenting time. Gerald’s counsel asked, “[Y]our under- standing was the Court gave you six out of 14 days” after the first 2 days of trial, and Gerald responded, “Correct.” But his “preference” was still 7 out of 14 days. It was also Gerald’s understanding that Ashley would owe him child support under an “8/6” parenting time schedule. A witness testified that she had seen Gerald and Ashley argue more than once in the past year, most recently on Christmas 2018. On Christmas, Gerald and Ashley were both at her house and, according to the witness, Gerald was  - 169 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 yelling at Ashley, “Ash, why the fuck you keep taking me through this. I’m tired of going through this shit with you with the kids back and forth to court.” The witness said Ashley replied that it was Christmas and that they did not need to be arguing. The witness also confirmed that she had observed Gerald smoke marijuana around his children within the past 2 years. The witness had observed Ashley smoke marijuana around the children in the past, but not in the last 4 years. After Ashley rested her case, counsel proceeded to clos- ing arguments. 5. District Court’s Decree The district court’s decree of paternity was filed on May 8, 2019. The court ordered that Gerald was the children’s father. Pursuant to the decree and the attached parenting plan, Ashley was awarded sole legal custody and primary physical custody of the children. Gerald was awarded parenting time every other weekend from Friday at 4 p.m. until Monday at 8 a.m. and every other Thursday from 4 to 7 p.m. (before the weekend in which he does not have parenting time). Each parent was to have 2 weeks of uninterrupted parenting time during the summer. A holiday parenting time schedule was also established. Gerald was ordered to pay child support in the amount of $665 per month for the two children, beginning February 1, 2019. He was also ordered to pay 38 percent of any noncov- ered medical expenses after Ashley had paid the first $480 annually per child and 38 percent of any work-related child- care expenses. All childcare expenses that accrued during the temporary order were preserved. The court noted that Gerald had paid $1,050 as partial payment toward childcare amounts due and owing under the temporary order, but as of May 1, 2019, still owed $2,612.40 in childcare arrearages; the court ordered him to pay $200 per month toward those arrearages. The order stated, “The parties shall each purchase the chil- dren clothing in an approximately equal amount.” And Gerald was ordered to pay $2,885 of Ashley’s attorney fees within  - 170 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 30 days of the decree “due to his inability to follow the tem- porary order regarding parenting time, child support obliga- tions, and child care obligations and the legal fees incurred by [Ashley] due to same.” 6. Postdecree Motions, Hearings, and Rulings On May 15, 2019, a “Defendant’s Motion to Reconsider, Motion to Alter or Amend, Motion for New Trial” (motion to reconsider) was filed by Gerald. On June 6, Gerald filed a motion requesting the district court to “enter an IFP Order allowing him to receive a transcription of the proceedings or an order for [Ashley] to pay for transcription of these proceedings” prior to hearing and argument on his motion to reconsider. On June 28, the district court denied Gerald’s motion for a transcription of the proceedings; Gerald appealed that decision, and on August 5, Gerald’s interlocutory appeal in case No. A-19-695 was dismissed by this court for lack of jurisdiction. A hearing on Gerald’s motion to reconsider was held on September 18, 2019. During the hearing, Gerald’s counsel repeatedly contended that the district court should have spo- ken to the children prior to entering its decree. Counsel stated, “[W]hen we rested [at trial], for the record, we said we’re rested conditioned on six out of 14 days. If Your Honor is not going to order that, please set it for further hearing and speak with the children.” The court responded by stating that because it did not grant Gerald’s request, it was overruled. Counsel replied, “Okay. I did not have an opportunity to make an offer of proof because I did not know that you were going to over- rule it.” Counsel continued: I would have made an offer of proof as to what the chil- dren would testify to had I known that you were not going to order six out of 14 days and you had no intention of speaking with the children. I would have made an offer of proof and, I’ll do that today.  - 171 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 According to counsel, “[I]f Phoenix and Cipher were called to testify in chambers with no parents present and just the attor- neys and Your Honor, that Cipher and Phoenix would say that they love their father.” Counsel continued: [Not having] six out of 14 days is traumatizing to them. The testimony that mom portrayed dad to be not keeping a house, not feeding them [nutritious meals], is inaccu- rate. That he was more than loving. He’s always put their needs ahead of his own. And that it’s extremely impor- tant for them to have quality time with their father. That would be the offer of proof . . . . Gerald’s counsel also challenged the amount of parenting time awarded to Gerald and the way child support was ordered. Additionally, counsel stated, “I realize that this [is] a motion for new trial, but [Gerald] would like specific findings of fact pursuant to [Neb. Rev. Stat. §] 25-1127 [(Reissue 2016)].” Pursuant to its order filed on September 26, 2019, and its order nunc pro tunc filed on October 3, the district court denied the entirety of Gerald’s motion to reconsider, “with the exception of the following, which has been stipulated to by the Parties.” Gerald’s child support obligation under the temporary order was amended as follows: From the time period of September 1, 2017 through May 1, 2019, Gerald owes a total of $7,986.00. Said amount is calculated based upon the following: i. From September 1, 2017 through September 30, 2018, [Gerald’s] child support obligation to [Ashley] is in the amount of $650.00 per month. ii. From October 1, 2018 through May 1, 2019, [Ashley’s] child support obligation to [Gerald] is in the amount of $58.00 per month. iii. This Order does not obligate [Ashley] to any past or current child support obligation. The purpose of the description of subparagraphs i,ii, and iii is solely to explain the computation of [Gerald’s] Child Support Obligation from September 1, 2017 through May 1, 2019.  - 172 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 Commencing May 1, 2019, Gerald’s child support obligation “shall adhere to the Decree of Paternity dated May 8, 2019.” 7. Appeal Gerald now appeals the paternity decree filed on May 8, 2019, and the October 3 order nunc pro tunc denying his motion for reconsideration. III. ASSIGNMENTS OF ERROR Gerald assigns, summarized and reordered, that the district court erred (1) in various ways at the temporary hearing and in the temporary order; (2) by not enforcing the settlement of the parties that was reached in the presence of the trial court; (3) by not allowing the children to testify; (4) by not granting his request for specific findings of fact; (5) by not awarding him more parenting time; (6) by ordering him to purchase approximately one-half of the children’s clothing; (7) by order- ing him to pay a portion of Ashley’s attorney fees; and (8) by not granting his IFP request for transcription of proceedings or, alternatively, in not ordering Ashley to pay for the same so that he could prepare for his motion for reconsideration. IV. STANDARD OF REVIEW [1,2] An appellate court reviews child custody determina- tions de novo on the record, but the trial court’s decision will normally be upheld absent an abuse of discretion. Randy S. v. Nicolette G., 302 Neb. 465 , 924 N.W.2d 48 (2019). An abuse of discretion occurs when a trial court bases its decision upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id. [3,4] A settlement agreement is subject to the general prin- ciples of contract law. Strategic Staff Mgmt. v. Roseland, 260 Neb. 682 , 619 N.W.2d 230 (2000). To have a settlement agreement, there must be a definite offer and an unconditional acceptance. Id. [5] An appellate court reviews child support determinations de novo on the record, but the trial court’s decision will be  - 173 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 affirmed absent an abuse of discretion. See State on behalf of Martinez v. Martinez-Ibarra, 281 Neb. 547 , 797 N.W.2d 222 (2011). [6] An award of attorney fees in a paternity action is reviewed de novo on the record to determine whether there has been an abuse of discretion by the trial judge. Absent such an abuse, the award will be affirmed. Cross v. Perreten, 257 Neb. 776 , 600 N.W.2d 780 (1999). V. ANALYSIS 1. Statute of Limitations Due to the gap in time between the children’s births (2005 and 2011) and the filing of Ashley’s complaint in this mat- ter (2017), we initially note that the procedure for obtaining a determination of paternity is set forth in Neb. Rev. Stat. §§ 43-1401 to 43-1418 (Reissue 2016 & Cum. Supp. 2018). Section 43-1411 provides that a paternity action may be insti- tuted “by (1) the mother or the alleged father of such child, either during pregnancy or within four years after the child’s birth . . . or (2) the guardian or next friend of such child or the state, either during pregnancy or within eighteen years after the child’s birth.” Paternity can also be established by a nota- rized acknowledgment of paternity. See, § 43-1409 (signing of notarized acknowledgment, whether under § 43-1408.01 or otherwise, by alleged father creates a rebuttable presumption of paternity as against alleged father); § 43-1408.01 (during period immediately before or after in-hospital birth of child whose mother not married, person in charge of hospital or designated representative shall provide mother and alleged father documents and written instructions to complete nota- rized acknowledgment of paternity; acknowledgment, if signed by both parties and notarized, shall be filed with Department of Health and Human Services at same time as certificate of live birth); Benjamin M. v. Jeri S., 307 Neb. 733 , ___ N.W.2d ___ (2020) (proper legal effect of signed, notarized acknowl- edgment of paternity is finding that individual who signed  - 174 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 as father is in fact legal father; establishment of paternity by properly executed acknowledgment is equivalent of establish- ment of paternity by judicial proceeding); Tyler F. v. Sara P., 306 Neb. 397 , 945 N.W.2d 502 (2020) (same). A notarized acknowledgment of paternity does not appear in the record before us. Furthermore, Ashley’s complaint and Gerald’s counterclaim were filed in the parties’ individual capacities and were filed outside of the 4-year statute of limi- tations set forth in § 43-1411. However, Gerald did not raise a statute of limitations defense to Ashley’s complaint, and instead, he acknowledged his paternity of the children. The statute of limitations is an affirmative defense which is waived if not asserted. See Benjamin M. v. Jeri S., supra (statute of limitations does not operate by its own force as bar, but, rather, operates as defense to be pleaded by party relying upon it and is waived if not pleaded). See, also, Manker v. Manker, 263 Neb. 944 , 644 N.W.2d 522 (2002). In Manker, a father argued that the mother of their child was barred from bringing a pater- nity action more than 4 years after the child’s birth, as set forth in § 43-1411. However, the Nebraska Supreme Court stated that “[t]he statute of limitations is an affirmative defense which is waived if not asserted by demurrer or answer.” Manker v. Manker, 263 Neb. at 952 , 644 N.W.2d at 531 . The Supreme Court pointed out that the father had acknowledged paternity and his obligation to pay support in his answer, and such an affirmative allegation was “a judicial admission which consti- tutes a waiver of all controversy with respect to those issues.” Id. at 953 , 644 N.W.2d at 531 . As such, the Supreme Court found no error in the district court’s determination that the claims were not time barred. In this case, both parties acknowledged that Gerald is the father of Cipher and Phoenix, and both parties sought a deter- mination of paternity, custody, and child support. Therefore, as in Manker v. Manker, supra, we find such acknowledgments to constitute a waiver of all controversy with respect to these issues and conclude that the claims are not time barred.  - 175 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 2. Temporary Hearing and Order [7] Gerald contends that the district court erred in various ways at the temporary hearing and in the temporary order and that such errors resulted in his not receiving a sufficient amount of parenting time. However, any issues regarding tem- porary custody and parenting time became moot upon entry of the decree of paternity establishing permanent custody and parenting time. See, State on behalf of Pathammavong v. Pathammavong, 268 Neb. 1 , 679 N.W.2d 749 (2004) (tem- porary order rendered moot when permanent custody order entered); Mann v. Rich, 18 Neb. App. 849 , 794 N.W.2d 183 (2011) (any issue relating to temporary order is moot after it is replaced by more permanent order). To the extent that Gerald takes issue with the effects of the temporary order on child support matters, the paternity decree on May 8, 2019, and the subsequent orders on September 26 and October 3 corrected the amount of Gerald’s monthly child support owed under the temporary order. And Gerald does not claim error with respect to the recalculation of the monthly child support obligation owed under the temporary order. 3. Settlement Agreement Gerald contends the district court erred by not enforcing the settlement of the parties that was reached in the presence of the trial court in chambers on October 1, 2018. As set forth previously, the district court met with the par- ties’ counsel in chambers after the lunch recess on October 1, 2018. Apparently, discussion was had as to how the court was inclined to rule based on what it had heard so far at trial, and rather than resuming trial, the parties thereafter attempted to draft a decree but could not agree on the terms they thought the court had indicated. Several motions were filed. On October 5, 2018, Ashley filed a motion for the district court “to reconsider and amend its findings from the paternity trial held September 28 and October 1 of 2018, to enlarge the record to allow rebuttal witnesses and closing statements as  - 176 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 neither were allowed, to clarify the decision of this Court, and for a new trial.” In support of her motion, Ashley stated: 16. [Gerald] is not capable of being a joint-physical custody parent and it is not in the children’s best inter- ests that the children spend almost half their time with [Gerald]. 17. The trial abruptly ended at 11:30am on October 1, 2018 in the middle of [Gerald’s] testimony after the Court had originally taken a break for lunch. 18. [Ashley] was not allowed rebuttal witnesses. 19. [Ashley] was not allowed . . . a closing argument. 20. [Gerald] is in contempt for not following the temporary order regarding parenting time, child support arrears, and child care expenses. 21. The Court did not provide a detailed purge plan and Counsel for Parties disagree as to said purge plan. 22. The Court did not provide a detailed timeline for which [Gerald] must pay a portion of [Ashley’s] attor- ney fees. 23. Clarity is needed regarding the obligation of the parents to ensure the children attend extracurricular activities. 24. The Court’s decision is not in the best interests of the minor children[.] 25. The Court’s decision regarding custody is contrary to law. The district court and parties’ counsel apparently met again in November 2018, but such proceedings do not appear in our record. However, the “Judges Notes” for November 16 appear in our transcript and state: “Matter came up for Motion to Clarify. Trial continued to 1/23/19 at 10a.m.” On November 28, 2018, Gerald filed a motion for entry of decree. Gerald alleged: [T]rial was held . . . on September 28, 2018 and October 1, 2018. [Gerald’s] counsel was instructed to prepare a Decree. [Gerald’s] counsel forwarded [Ashley’s] Counsel  - 177 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 a proposed Decree and Parenting Plan the following day on October 2, 2018. [Ashley] filed a Motion for Clarification as to certain terms of the Decree, which was heard before the Court on November 16, 2018 and certain matters were clarified. Gerald attached a proposed decree which he believed was “wholly reflective of the nature of the proceedings as well as the Court’s finding and Orders,” with the exception that Gerald added a paragraph providing that both parties shall be awarded the 7 days of parenting time of their choosing each year, to accommodate for special events that each parent may want to spend with the minor children. In relevant part, the proposed decree awarded sole legal custody to Ashley, but awarded the parties joint physical custody—Ashley was to have parent- ing time 8 out of every 14 days and Gerald was to have par- enting time 6 out of every 14 days; the parties were to have equal parenting time during the summer. On November 29, 2018, Ashley again filed a motion for the court “to reconsider and amend its findings from the paternity trial held September 28 and October 1 of 2018, to enlarge the record to allow rebuttal witnesses and closing statements as nei- ther were allowed, to clarify the decision of this Court, and for a new trial.” In support of her motion, Ashley made the same statements as in her October 5 motion. Also, on November 29, Gerald filed an objection to Ashley’s motion. At a hearing on December 4, 2018, the parties and the dis- trict court set forth their recollections of what had transpired following the lunch recess on October 1. Gerald’s counsel contended that the parties had reached a settlement in cham- bers and wanted the court to enforce the settlement and enter the proposed decree wherein the parties were to have joint physical custody—Gerald was to have parenting time 6 out of every 14 days. However, the court noted that Ashley’s counsel did not agree and wanted to finish the trial. Ashley’s coun- sel stated that in November, the court “made a decision that we would schedule a two-hour opportunity for us in January  - 178 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 [2019] to finish the testimony, not only of my client, but also of [Gerald] and allow the parties to submit their closing argu- ments,” and therefore, Ashley objected to Gerald’s motion to enter a decree. The district court recollected that when they had trial, it was not complete; that during a break, the court informed the par- ties’ counsel what it thought would be appropriate based on the evidence it had heard; and that the parties’ counsel said they would try to put together a decree, but since then counsel dis- agreed as to what they thought the court was going to propose. The court did not think “either [was] correct a hundred per- cent.” The court said that “we’ll just finish the trial in January.” Gerald objected to “re-opening this matter.” During the discus- sion that followed, the district court stated: I believe a settlement was reached [on October 1, 2018]. But because that wasn’t memorialized, because we didn’t come back out in the courtroom and put in on the record at that time, I don’t believe it’s enforceable by the Court. I think you get a chance to finish, if that’s what you want. Trial thereafter resumed on January 23, 2019. We have previously set forth the parties’ testimony from January 23, 2019. The testimony suggests that the parties had an understanding of a new parenting time arrangement after October 1, 2018, which, according to Gerald, gave him parent- ing time 6 out of 14 days. And upon our review of the record, it appears the parties started exercising an 8/6 parenting time schedule. Besides the testimony of the parties, Ashley’s coun- sel stated during closing arguments that “even after the second day of trial, [Ashley] allow[ed] [Gerald] to have six days every 14 days because it seemed as those [sic] perhaps there was something going on with the Court’s direction.” At the motion for reconsideration, the following colloquy was had: [Gerald’s counsel:] And, Your Honor, after trial, on September 28th and October 1st, you knew everything that happened at the temporary hearing. And you had  - 179 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 two days of trial and you said this man needs to have more time with his children, and you gave him six out of 14 days. Six out of 14 days. [Ashley’s counsel:] Objection, Your Honor. That mis- states facts not in evidence. There was no order. THE COURT: Sustained. [Gerald’s counsel:] Your Honor, it’s been stipulated to. It’s in all the testimony. THE COURT: No, it’s sustained. [Gerald’s counsel:] Your Honor, after October 1st of 2018, [Gerald] had six out of 14 days that’s been stipu- lated to on the record. We had a trial. [Ashley’s counsel:] Objection, Your Honor. That mis- states facts not in evidence. There’s nothing stipulated to as far as the time is concerned on the record. [Gerald’s counsel:] It’s permeated in the record, Your Honor. THE COURT: The motion is sustained. [Gerald’s counsel:] It permeates the record. THE COURT: Objection is sustained. Excuse me. Additionally, at trial, Gerald’s understanding was that Ashley would owe him child support under an 8/6 parenting time schedule. And in the district court’s order nunc pro tunc, Gerald’s temporary child support obligation was amended, in part because Ashley owed Gerald child support from October 1, 2018, through May 1, 2019. This would again suggest the parties were operating under a different parenting time arrange- ment after the first 2 days of trial. In this instance, we have Gerald, who claims there was an agreement reached in cham- bers during the break from trial on October 1, which explains why trial ceased that day and the parties started exercising par- enting time under an 8/6 schedule. The district court appears to also indicate there was a settlement agreement, but Ashley claims there was no agreement. [8-11] A settlement agreement is subject to the general principles of contract law. Strategic Staff Mgmt. v. Roseland,  - 180 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 260 Neb. 682 , 619 N.W.2d 230 (2000). To have a settlement agreement, there must be a definite offer and an unconditional acceptance. Id. See, also, Linscott v. Shasteen, 288 Neb. 276 , 847 N.W.2d 283 (2014) (to create contract, there must be both offer and acceptance; there must also be meeting of minds or binding mutual understanding between parties to contract). A binding mutual understanding or meeting of the minds suf- ficient to establish a contract requires no precise formality or express utterance from the parties about the details of the proposed agreement; it may be implied from the parties’ con- duct and the surrounding circumstances. Linscott v. Shasteen, supra. The determination of the parties’ intent to make a contract is to be gathered from objective manifestations—the conduct of the parties, language used, or acts done by them, or other pertinent circumstances surrounding the transaction. Id. A fundamental and indispensable basis of any enforceable agreement is that there be a meeting of the minds of the parties as to the essential terms and conditions of the proposed con- tract. Gibbons Ranches v. Bailey, 289 Neb. 949 , 857 N.W.2d 808 (2015). [12,13] An alleged oral compromise and settlement agree- ment not made in open court is unenforceable where it is in violation of the statute of frauds or in violation of a court rule requiring all stipulations and agreements of counsel or parties to a suit to be in writing, signed by the parties or their attor- neys. In re Estate of Mithofer, 243 Neb. 722 , 502 N.W.2d 454 (1993), citing Omaha Nat. Bank v. Mullenax, 211 Neb. 830 , 320 N.W.2d 755 (1982). Conversely, a settlement agreement made in open court on the record, agreed to by all of the parties to the litigation and approved by the court, is enforceable. In re Estate of Mithofer, supra. There is no court rule in Douglas County, which is in the Fourth Judicial District, requiring all settlements to be in writ- ing, signed by the parties or their attorneys. Compare Rules of Dist. Ct. of Fourth Jud. Dist. 4-6 (rev. 1995) (when case is resolved by settlement stipulation, case shall be placed  - 181 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 on inactive status until settlement consummated, at which time case shall be dismissed; if settlement stipulation not consum- mated, case may be reinstated to active status upon motion of any party), with Rules of Dist. Ct. of Second Jud. Dist. 2-3 (rev. 1995) (all agreements of counsel or parties to suit must be reduced to writing and signed by parties making same and filed with clerk, or they will not be recognized or considered by court), Rules of Dist. Ct. of Fifth Jud. Dist. 5-3 (rev. 2001), and Rules of Dist. Ct. of Seventh Jud. Dist. 7-3 (rev. 1995). In the present case, custody and parenting time decisions would not be subject to the statute of frauds, and there is no court rule requiring that all settlements be in writing or be made orally on the record of the court. In this case, it is alleged there was an oral agreement made in chambers, which counsel for Gerald understood to be a settlement agreement, and which the district court understood to be a settlement, but which it acknowledged had not been placed on the record. This court has previously addressed the enforcement of an oral settlement agreement. In Furstenfeld v. Pepin, 23 Neb. App. 155 , 869 N.W.2d 353 (2015), Lisa Pepin (Lisa) filed a complaint against her former husband, Justin Furstenfeld (Justin), to modify the parenting time and support provisions of their dissolution decree. During the ensuing litigation, Lisa, her counsel, and Justin’s counsel met to conduct a telephonic deposition of Justin, who was residing out of state. Instead of conducting a deposition, however, the parties, through their attorneys, engaged in settlement negotiations and an apparent agreement was reached. After reaching this agreement, coun- sel for both parties jointly contacted the district court judge to notify the court of the agreement and to remove the matter from the court’s trial calendar. Lisa’s counsel proceeded to prepare a stipulation containing the terms of the parties’ agree- ment. Justin refused to sign the stipulation. Lisa filed a motion to enforce the settlement agreement. Specifically, her motion stated that she sought to enforce the oral agreement reached by the parties.  - 182 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 At a hearing on the motion, Lisa testified as to her under- standing of what transpired at the meeting that led to the pur- ported agreement. A copy of the stipulation was received into evidence. Lisa’s counsel also called Justin’s counsel as a witness to testify in order to provide foundation for an email regarding the oral settlement agreement and to establish that Justin and his counsel engaged in communications during the settlement negotiation meeting. Justin’s counsel acknowledged that the day before the meeting, he sent an email to Lisa’s counsel which contained the terms on which Justin offered to settle the case. The next day, Justin’s counsel arrived at opposing counsel’s office to conduct a telephonic deposition of Justin. Justin’s counsel confirmed that settlement negotiations ensued, an agreement was reached, and he and Lisa’s counsel con- tacted the court to inform it that the matter had been settled. Later that day, Justin’s counsel received an email from Lisa’s counsel’s assistant which stated that it included the stipulation for modification of decree based on the agreement reached that morning. The email further stated that Lisa’s counsel would “‘work up’” a child support calculation that “‘matche[d]’” a certain figure to attach to the stipulation. Furstenfeld v. Pepin, 23 Neb. App. at 161, 869 N.W.2d at 360. Justin’s counsel sent the following response to Lisa’s assistant: “I believe this accurately reflects the agreement. I’ll send to [Justin], and once he returns to me the executed original, I will get it to [Lisa’s counsel]. The trial date has been removed from the judge’s calendar, so we’re not under a rush, although I think we told the judge we’d get it to him for approval by the end of next week. Neither party will need to appear since we’re not changing cus- tody or parenting time.” Id. On cross-examination, Justin’s counsel stated that Justin had not given him the right to sign off on anything. Later in the hearing, Justin testified that he did not authorize his attorney to make the settlement offer contained in the email.  - 183 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 The district court entered an order finding that the parties had entered into a binding settlement agreement that resolved all material terms of the dispute. The court further found that the proposed stipulation entered into evidence accurately reflected the terms of the parties’ agreement. The court approved the terms of the stipulation and directed Lisa’s counsel to prepare an order consistent with the stipulation; the court subsequently signed the prepared order. Justin appealed. On appeal, this court found that Justin had not rebutted the presumption that his attorney was authorized to make state- ments on his behalf. This court further found that the district court did not err in allowing Justin’s counsel to be questioned on a limited basis because counsel’s testimony was material and relevant to the issue being litigated and there was no other witness that could have provided the evidence. Additionally, this court found no error in the district court’s conclusion that a settlement agreement may be established by the testi- mony of the attorney of the party sought to be bound; plain statutory language supported such a result. See Neb. Rev. Stat. § 7-107 (Reissue 2012) (powers of attorneys include the power to bind client by counsel’s agreement in respect to any proceeding within scope of proper duties and powers; but no evidence of any such agreement is receivable except statement of attorney, attorney’s written agreement signed and filed with clerk, or entry thereof upon records of court). This court con- cluded the record contained sufficient evidence for the district court to have sustained Lisa’s motion to enforce the settle- ment agreement. Both Furstenfeld v. Pepin, 23 Neb. App. 155 , 869 N.W.2d 353 (2015), and one of the cases cited therein, Lennon v. Kearney, 132 Neb. 180 , 271 N.W. 351 (1937), involve a lawyer’s ­authority to enter into a settlement agreement. And both cases state, “[W]hen an attorney appears in a cause, there is a pre- sumption that the attorney has authority and that presumption continues until the want of such authority is established,” and the “burden of proof of such want of authority is upon the party asserting the same.” Furstenfeld v. Pepin, 23 Neb. App.  - 184 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 at 166, 869 N.W.2d at 363 (other case cited therein for propo- sition did not involve a settlement), citing Lennon v. Kearney, supra (two cases cited therein for proposition did not involve a settlement). However, a reading of both cases reveals that it was not the presumption of authority that actually decided the result. Rather, in both cases, it was the opposing party—i.e., the party wanting to enforce the settlement—that put on evi- dence as to the lawyer’s authority to settle. Having the oppos- ing party present evidence of a lawyer’s authority to settle is in line with the Nebraska Supreme Court’s holding in Luethke v. Suhr, 264 Neb. 505 , 650 N.W.2d 220 (2002), a case also cited in Furstenfeld v. Pepin, supra. [14-16] In Luethke v. Suhr, 264 Neb. at 513 , 650 N.W.2d at 226 , the Nebraska Supreme Court held: [A]lthough lawyers retain apparent authority to make procedural and tactical decisions through the existence of the attorney-client relationship, a lawyer cannot settle a client’s claim without express authority from the client. In other words, where there has been nothing beyond a mere employment or retainer of the lawyer to represent the client in a cause and the lawyer has acquired no other authority to enter into a settlement (such as acquiescence in open court), if the lawyer seeks to enter a settlement, the opposing party should ascertain whether the lawyer has received actual authority from the client to take such action. A party who enters a settlement agreement without verifying the opposing counsel’s actual authority to settle does so at his or her peril. Disputes over a lawyer’s authority to settle are factual issues to be resolved by the trial court; however, an appellate court will not set aside a trial court’s factual findings regarding settlement disputes unless such findings are clearly erroneous. See id. This case before us is distinguishable from Furstenfeld v. Pepin, 23 Neb. App. 155 , 869 N.W.2d 353 (2015), in that Gerald did not call Ashley’s counsel to testify regarding the settlement agreement, including any email exchanges or other written correspondence to that effect in preparation of  - 185 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 the proposed decree following the in-chambers meeting on October 1, 2018. Thus, our review is limited to the informa- tion provided in the motions filed after October 1; the hear- ing on December 4; the parties’ testimony from the third day of trial on January 23, 2019; and the proceedings and orders that followed. That limited information does not affirmatively establish that there was a meeting of the minds regarding any alleged settlement agreement in this case on October 1, 2018, or that Ashley’s counsel had received actual authority to settle based upon the discussions held in chambers between the court and the attorneys. Had Gerald’s counsel put on evidence simi- lar to that in Furstenfeld v. Pepin, supra, if such existed, and further established that Ashley’s counsel had authority to settle based on the discussions held in chambers, if that was the case, see Luethke v. Suhr, supra, we may have reached a dif- ferent decision. However, based on the limited record before us as to this issue, we cannot conclude there was an enforce- able settlement agreement following the discussions held in chambers on October 1. 4. Allowing Children to Testify Gerald contends that the district court erred by not allowing the children to testify. In determining custody and parenting arrangements, the court is to consider the best interests of the minor child, one such factor of which is “[t]he desires and wishes of the minor child, if of an age of comprehension but regardless of chrono- logical age, when such desires and wishes are based on sound reasoning.” Neb. Rev. Stat. § 43-2923 (6)(b) (Reissue 2016). While the wishes of a child are not controlling in the deter- mination of custody, if a child is of sufficient age and has expressed an intelligent preference, the child’s preference is entitled to consideration. Vogel v. Vogel, 262 Neb. 1030 , 637 N.W.2d 611 (2002). In those cases where the child’s preference was given significant consideration, the child was typically over 10 years old. See id.  - 186 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 Prior to trial, Gerald’s counsel subpoenaed Cipher and Phoenix to appear at trial on September 28, 2018. When trial began on September 28, it was noted during Ashley’s opening argument that the children were brought to court that morning. After opening arguments were completed, the district court indicated that after hearing the evidence, the attorneys could converse and decide when to arrange for the court to hear from the children. At the time of trial, Cipher was 13 years old and Phoenix was 7 years old. After questioning three witnesses, Ashley’s counsel stated that “[e]xcept for rebuttal purposes,” there were no more witnesses for Ashley. Gerald’s counsel also called three witnesses on September 28 and continuing on October 1, including Gerald and Ashley. It was agreed that Ashley’s counsel could ask rebuttal questions of Ashley, outside the scope of redirect, so that she would not have to be recalled as a witness. After Ashley was excused from the stand on October 1, 2018, the district court asked if there was any further evidence from either party. Gerald’s counsel said they were supposed to have “some witnesses” there; after being given a brief recess to look for the witnesses, counsel stated that one of the wit- nesses was “ten minutes” away and that the other could not be reached. Counsel also said: I do have a request that you speak with the children before the proceeding concludes. And I don’t really want to make closing arguments until you have spoken with the children, Your Honor. If you’re willing to entertain wait- ing until — breaking for lunch and I’ll just put on two witnesses, and then I’ll ask you to speak to the children. Ashley’s counsel objected, expressing concerns about Gerald’s admission that he had talked with the children about problems between the parties and what they have “been told to say.” Gerald’s counsel replied that Gerald just wanted his chil- dren to be heard and that he did not tell them how to testify. Counsel “respectfully request[ed] that [the court] take a few minutes” with the children. Gerald’s counsel continued, stating,  - 187 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 “[T]he parents do not need to be present. Counsel does not need to ask questions. But I would ask that Your Honor at least speak with the children in this matter.” The court indicated it would “think about that.” Trial then broke for lunch, but coun- sel met with the court in chambers. As noted previously, there were various motions filed and hearings held to determine whether the case had been resolved. But trial resumed on January 23, 2019. On January 23, Gerald’s counsel stated: I’ve decided to rest with the exception that I still would like you to speak to the children. If after the case in chief you feel like you are not going to give [Gerald] at least six days out of 14, I would continue to ask you to speak with the children. But I will rest my case, Your Honor. Ashley’s counsel proceeded to call Gerald as a witness and questioned him, in part, about events that occurred since they had last been in trial on October 1, 2018, including the situa- tion regarding the Kansas City trip. Another witness testified about a verbal altercation she witnessed between Gerald and Ashley on Christmas 2018. And Ashley was called as a rebut- tal witness to testify about the situation regarding the Kansas City trip. Counsel then rested Ashley’s case, and the attorneys proceeded to closing arguments. As set forth previously, in the May 2019 paternity decree, the district court awarded Ashley primary physical custody of the children and awarded Gerald regular parenting time every other weekend from Friday at 4 p.m. until Monday at 8 a.m. and every other Thursday from 4 to 7 p.m. (before the weekend in which he does not have parenting time). At the hearing on Gerald’s motion to reconsider, the follow- ing colloquy was had. [Gerald’s counsel:] . . . . [W]hen we rested [on January 23, 2019], for the record, we said we’re rested condi- tioned on six out of 14 days. If Your Honor is not going to order that, please set it for further hearing and speak with the children. The matter concluded on January 23rd.  - 188 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 THE COURT: And the Court overruled both your motions. .... THE COURT: Well, I didn’t grant it, so it’s overruled. [Gerald’s counsel:] Okay. I did not have an opportunity to make an offer of proof because I did not know that you were going to overrule it. The way we left things on January 23rd, [Ashley’s counsel] had submitted a pro- posed decree to you. I had submitted a proposed decree to you. And I said, Your Honor, if you’re not going to do six out of 14 days, I want you to speak to the children. And I was — THE COURT: When did the court become Let’s Make a Deal? .... THE COURT: It’s my decision whether or not I felt it was appropriate to talk with the children. [Gerald’s counsel:] I understand that. THE COURT: And it’s not Let’s Make a Deal. And you can’t say if you’re not going to do this, Judge, then you got to do that. [Gerald’s counsel:] Your Honor, I would have made an offer of proof as to what the children would testify to had I known that you were not going to order six out of 14 days and you had no intention of speaking with the children. I would have made an offer of proof and, I’ll do that today. On appeal, Gerald argues that the district court erred when it failed to hear testimony from the children. However, when the trial resumed on January 23, 2019, Gerald’s counsel stated: I’ve decided to rest with the exception that I still would like you to speak to the children. If after the case in chief you feel like you are not going to give [Gerald] at least six days out of 14, I would continue to ask you to speak with the children. But I will rest my case, Your Honor. Thus, counsel rested, but attempted to make the rest con- ditioned on how the court might decide the case, and if the  - 189 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 court was not going to rule in Gerald’s favor, counsel appar- ently expected the court to reopen the case to hear from the children. That is borne out later, at the hearing on the motion for reconsideration, when counsel addressed the district court and stated: January 23rd, through May of 2019, there was no order from Your Honor. And I was assuming that if Your Honor was going to enter less than six out of 14 days, you would have contacted [opposing counsel] and myself and said, Hey, I need to speak to the children. [17] Regardless of counsel’s assumptions or Gerald’s wishes that the court speak to the children, once the attorneys rested their cases, the matter was submitted. At that point, the court was under no obligation to reopen the case to receive testimony from the children. The court was not required to tip its hand regarding its ruling in order to allow Gerald’s counsel to decide whether or not to present more evidence through the children’s testimony before resting Gerald’s case. Because counsel rested, we cannot find any error by the district court in its determina- tion to enter its decision without reopening the case to hear from the children. The reopening of a case to receive additional evidence is a matter within the discretion of the district court and will not be disturbed on appeal in the absence of an abuse of that discretion. Myhra v. Myhra, 16 Neb. App. 920 , 756 N.W.2d 528 (2008). 5. Specific Findings of Fact and Parenting Time Gerald contends the district court erred by not granting his request for specific findings of fact and by not awarding him more parenting time. (a) Specific Findings of Fact [18] Neb. Rev. Stat. § 25-1127 (Reissue 2016) provides in relevant part, “Upon the trial of questions of fact by the court, it shall not be necessary for the court to state its find- ing, except, generally, for the plaintiff or defendant, unless one  - 190 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 of the parties request[s] it . . . .” In a case tried to the court ­without a jury, a motion for specific findings of fact must be made before final submission of the case to the court. See Stuczynski v. Stuczynski, 238 Neb. 368 , 471 N.W.2d 122 (1991). See, also, In re Estate of Wiley, 150 Neb. 898 , 36 N.W.2d 483 (1949) (after court has announced decision, request made for separate findings of fact and conclusions of law came too late). Gerald did not ask the district court to make specific findings of fact under § 25-1127 until the hearing on his motion for reconsideration. Because Gerald’s request was not made until after the case was submitted to the court, the court was not under any obligation to provide specific findings. (b) Parenting Time Gerald argues that the district court should have awarded him parenting time with his children “at least 6 out of 14 days during the school year, 1⁄2 of holidays and 1⁄2 of the summer as this was in the children’s best interest[s].” Brief for appellant at 34 (emphasis omitted). [19] When deciding custody issues, the court’s paramount concern is the child’s best interests. Citta v. Facka, 19 Neb. App. 736 , 812 N.W.2d 917 (2012). The best interests inquiry has its foundation in both statutory and case law. Section 43-2923(6) provides that in determining custody and parent- ing arrangements: [T]he court shall consider the best interests of the minor child, which shall include, but not be limited to, consid- eration of . . . : (a) The relationship of the minor child to each parent prior to the commencement of the action or any subse- quent hearing; (b) The desires and wishes of the minor child, if of an age of comprehension but regardless of chronological age, when such desires and wishes are based on sound reasoning; (c) The general health, welfare, and social behavior of the minor child;  - 191 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 (d) Credible evidence of abuse inflicted on any family or household member . . . ; and (e) Credible evidence of child abuse or neglect or domestic intimate partner abuse. Other pertinent factors include the moral fitness of the child’s parents, including sexual conduct; respective environments offered by each parent; the age, sex, and health of the child and parents; the effect on the child as a result of continuing or disrupting an existing relationship; the attitude and stabil- ity of each parent’s character; and parental capacity to provide physical care and satisfy educational needs of the child. Robb v. Robb, 268 Neb. 694 , 687 N.W.2d 195 (2004). The record reveals a contentious relationship between Gerald and Ashley. While both parents appear to love their chil- dren, Ashley appears to have a more even temperament. And Gerald has put the children in the middle of his disputes with Ashley—e.g., when he showed Cipher affidavits Ashley and her mother presented to the court and when he made Cipher choose between going to an out-of-town football game a day earlier than Ashley would allow or missing the game. Based on the evidence from trial set forth previously, we cannot say the district court abused its discretion when it awarded Gerald regular parenting time every other weekend from Friday at 4 p.m. until Monday at 8 a.m. and every other Thursday from 4 to 7 p.m. (before the weekend in which he does not have parenting time). 6. Clothing Costs Gerald argues the district court erred when it ordered him to purchase approximately one-half of the children’s clothing, even though his child support obligation was based on a sole custody calculation. We agree, as discussed below. [20] In Kelly v. Kelly, post p. 198, ___ N.W.2d ___ (2020), released the same day as this opinion, we set forth the pro- gression of the law regarding child support and various expenses considered in support orders. Prior to the Nebraska Child Support Guidelines, Nebraska statutory law addressed  - 192 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 various expenses, including clothing, to be considered in sup- port orders. See, Neb. Rev. Stat. § 42-369 (3) (Cum. Supp. 2018); Kelly v. Kelly, supra. Later, in 1987, the Nebraska Child Support Guidelines were created. See Kelly v. Kelly, supra. See, also, Neb. Rev. Stat. § 42-364.16 (Reissue 2016) (requires Nebraska Supreme Court to create guidelines that serve as rebuttable presumption in setting child support obli- gations). Then, in 2008, the Legislature passed 2008 Neb. Laws, L.B. 1014, § 33, codified at Neb. Rev. Stat. § 42-364.17 (Reissue 2016), which specifically sets forth certain categories of expenses—“necessary medical, dental, and eye care, medi- cal reimbursements, day care, extracurricular activity, educa- tion, and other extraordinary expenses of the child”—that could be considered in determining parents’ financial respon- sibilities related to their children. See Kelly v. Kelly, supra. A trial court has the authority to order a parent to pay the categories of expenses specified in § 42-364.17, in addition to the monthly child support obligation calculated under the guidelines. See Kelly v. Kelly, supra. Because the broader, more general terms contained in § 42-369(3) preceded the adoption of the ­guidelines and the passage of § 42-364.17, we construe the guidelines and § 42-364.17 to control what cat- egories of expenses can be ordered to be paid in addition to a monthly child support obligation when child support has been calculated using the basic net income and support calculation, worksheet 1. Kelly v. Kelly, supra. See Neb. Ct. R. ch. 4, art. 2, worksheet 1 (rev. 2016). As applicable here, when considering § 42-364.17 and what expenses a parent may be ordered to pay in addition to his or her monthly child support obligation which has been calculated using the basic net income and support calcula- tion, worksheet 1, the only category under which clothing could possibly qualify would be “extraordinary expenses.” As stated in Kelly v. Kelly, post at 198, ___ N.W.2d at ___, “We conclude that such expenses fall within the basic necessities intended to be covered by a monthly child support obligation  - 193 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 calculated using the basic net income and support calcula- tion, worksheet 1, and do not rise to the level of ‘extraordi- nary expenses.’” However, an order requiring Gerald to purchase one-half of the children’s clothing would have been appropriate had the court ordered joint physical custody. Neb. Ct. R. § 4-212 (rev. 2011), regarding joint physical custody, provides in relevant part: “If child support is determined under this paragraph, all reasonable and necessary direct expenditures made solely for the child(ren) such as clothing and extracurricular activities shall be allocated between the parents, but shall not exceed the proportion of the obligor’s parental contributions . . . .” But, in this case, Gerald’s child support obligation was based on Ashley’s primary custody of the children, and thus, Gerald could be required to pay for only a portion of the children’s clothing if it rose to the level of an “extraordinary expense.” And we have already determined that clothing is a basic neces- sity intended to be covered by a monthly child support obliga- tion which has been calculated using worksheet 1. The district court abused its discretion in ordering that “[t]he parties shall each purchase the children clothing in an approxi- mately equal amount.” Accordingly, we reverse this portion of the decree, and the decree is modified accordingly. 7. Attorney Fees Gerald argues that the district court erred in ordering him to pay $2,885 of Ashley’s attorney fees “in light of the fact that [he] was shorted 26 days of parenting time due to the entry of an erroneous temporary order and because he was making good faith efforts to pay financial obligations owed in the temporary order.” Brief for appellant at 49. An affidavit from Ashley’s attorney was received into evi- dence and stated that counsel had “personally spent at least 11.8 hours of work related to temporary hearing and contempt issues” and that counsel’s office had also incurred fees and expenses; counsel’s rate was $275 per hour. Counsel’s para- legal had also worked on the case for 6.4 hours at a rate of  - 194 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 $150 per hour. Ashley testified that she incurred attorney fees related to three temporary hearings—the original temporary hearing plus two additional temporary hearings requested by Gerald—and she had to file a contempt action when Gerald would not follow the temporary parenting time and child sup- port orders. Ashley was not asking that Gerald be ordered to pay for all of her attorney fees, acknowledging that she was “responsible for initiating the custody” proceedings. But she requested an award of attorney fees “to offset the charges that wouldn’t have occurred if [Gerald] would have followed the [temporary] ruling.” The district court ordered Gerald to pay $2,885 of Ashley’s attorney fees “due to his inability to follow the temporary order regarding parenting time, child support obligations, and child care obligations and the legal fees incurred by [Ashley] due to same.” The record is clear that Gerald was not prepared for the temporary hearing in September 2017, at which he appeared pro se. Following the temporary hearing and order, he failed to follow the parenting time schedule and failed to fulfill his child support obligation. After Gerald obtained counsel, he sought further temporary orders, necessitating Ashley to employ her counsel’s services. Gerald’s attempts to obtain fur- ther temporary orders regarding parenting time and child sup- port were not successful. At the time trial commenced, Gerald had not paid any of the court-ordered childcare costs and he was behind in paying child support. Between September 2017 and June 2018, Gerald paid only $1,050. Between June 26, 2018, and the completion of trial on January 23, 2019, Gerald had paid a little more than $2,000; he never once paid his full monthly obligation. By the time trial concluded, Gerald was thousands of dollars in arrears in child support (approximately $10,000 in arrears and interest as of January 23, 2019, but we recognize that the temporary child support order was modified in the final decree). Accordingly, we find no abuse of discre- tion by the trial court, and we affirm its award of $2,885 in  - 195 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 attorney fees to Ashley. See Cross v. Perreten, 257 Neb. 776 , 600 N.W.2d 780 (1999) (award of attorney fees in paternity action reviewed de novo on record to determine whether there has been abuse of discretion by trial judge; absent such abuse, award will be affirmed). 8. Transcription Costs in Preparation for Motion for New Trial Gerald contends that the district court erred by not granting his IFP request for transcription of court hearings or, alterna- tively, in not ordering Ashley to pay for the same so that he could “adequately prepare for Motion for New Trial.” Brief for appellant at 47 (emphasis omitted). After the paternity decree was filed on May 8, 2019, Gerald filed his motion to reconsider on May 15. At a hearing on May 31, Gerald’s counsel mentioned that she had previously sent a letter to the court requesting that an IFP order be entered for Gerald because he requested a “transcript” of the entirety of the proceedings so counsel could have them before the hearing on the motion to reconsider. Counsel renewed the IFP request on the record and requested that the court grant the IFP, that a “transcript be prepared,” and that the hearing be continued until counsel had the opportunity to review the transcript. On June 6, 2019, Gerald filed a “Motion for Transcript.” Gerald requested that the district court “enter an IFP Order allowing him to receive a transcription of the proceed- ings or an order for [Ashley] to pay for transcription of these proceedings” prior to his hearing and argument on his motion to reconsider. In his affidavit attached to the motion, Gerald states: In order for [him] to have procedural and substantive due process and a fair proceeding, given the unusual progres- sion and unusual length of these proceedings, counsel for [Gerald] needs to review the entirety of the over eight (8) month time period of trial and also hearings that occurred prior when [Gerald] was pro se.  - 196 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 Gerald also believed that the court needed to review the evi- dence in its entirety when making a final ruling on his motion to reconsider. A hearing was held on June 27, 2019, regarding Gerald’s request that the district court enter an IFP order for him to be able to receive “a copy of the complete transcript” or, alter- natively, to order Ashley to pay for it. Received into evidence was Gerald’s affidavit with pay stubs attached ($2,169.46 gross and $1,123.67 net from April 21 to May 18, 2019), and his 2018 W-2 wage and tax statement ($31,490.12 for the year); he claimed his monthly expenses set forth in the affidavit exceeded his income. The court noted that according to the pay stubs, Gerald was not working full time—he was working approximately 60 hours in a 2-week period. The court stated, “I have no information for why he’s not working full time. I don’t find him to be below the poverty level, and I’m not sure how it’s going to support the request to proceed IFP.” Gerald then asked the court to order Ashley to pay for the transcript. Ashley’s counsel argued she should not have to pay for it. Counsel noted that Gerald argues he does not have the ability to pay for the transcript, but he had purchased plane tickets to take the children to New York. The court stated, “I’m not going to order [Ashley to] pay for the transcript.” On June 28, 2019, the district court denied Gerald’s motion for a transcription of the proceedings. Neb. Rev. Stat. § 25-2301.01 (Reissue 2016) states: Any county or state court, except the Nebraska Workers’ Compensation Court, may authorize the commencement, prosecution, defense, or appeal therein, of a civil or crimi- nal case in forma pauperis. An application to proceed in forma pauperis shall include an affidavit stating that the affiant is unable to pay the fees and costs or give security required to proceed with the case, the nature of the action, defense, or appeal, and the affiant’s belief that he or she is entitled to redress. (Emphasis supplied.) Gerald’s desire to have the earlier pro- ceedings transcribed was not absolutely necessary to his  - 197 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports SMITH v. KING Cite as 29 Neb. App. 152 motion to reconsider, and we therefore find that it is not the type of “required” fees and costs anticipated by the statute. Additionally, we are unaware of any authority, and Gerald points us to none, that would require Ashley to pay for a tran- scription of the proceeding so that Gerald could prepare for a hearing on his own motion. VI. CONCLUSION We reverse the portion of the paternity decree which states, “The parties shall each purchase the children clothing in an approximately equal amount.” The May 8, 2018, paternity decree is modified accordingly. We otherwise affirm the pater- nity decree, as well as the October 3 order nunc pro tunc deal- ing with Gerald’s child support obligation. Affirmed as modified.

2013-10-30 05:57:18.337892+00

Shinn

8 Cal. App. 2d 556 (1935) COUNTY SANITATION DISTRICT No. 2 OF COUNTY OF LOS ANGELES, Respondent, v. GEORGE G. AVERILL et al., Defendants; ROMAN D. SEPULVEDA, Appellant. Civ. No. 9300. California Court of Appeals. Second Appellate District, Division One. July 31, 1935. G. W. Nix, Lloyd S. Nix and Joe Raycraft for Appellant. Hugh Gordon and Hill, Morgan & Bledsoe for Respondent. Shinn, J., pro tem. This action was brought by County Sanitation District No. 2 of Los Angeles County against the appellant, Roman D. Sepulveda and others, for the purpose of acquiring a right of way for an outfall sewer into the Pacific Ocean. The property of appellant which was taken in the proceeding consists of three parcels, one designated in the record as parcel number three, being a subsurface easement 25 feet wide and 4,102.64 feet long, containing 2.355 acres. Another parcel, designated as parcel number four, consists of a surface easement and a subsurface easement 50 feet by 167 feet, containing 0.192 acres. The surface easement covers lands lying between a bluff and the ocean, and is subject *559 to right of ingress and egress by appellant Sepulveda. The third parcel, designated as parcel number five, consists of a right of way to be used during the two-year period while the work is under construction, and runs from Pacific Avenue to the surface and subsurface easement number four. The land of appellant, from which the easements in question were taken, consists of 381.35 acres lying along the ocean westerly of Point Fermin and San Pedro Harbor. It has a frontage on the ocean of 4,625 feet. The shore line consists of a rocky beach between the ocean and high bluffs which extend along the entire frontage. The case was tried before a jury, which awarded appellant certain amounts as the value of the property taken and as damage to the remainder of the land caused by the severance therefrom of parcels three and four and the construction of the improvement in the manner proposed. Defendant Sepulveda appeals from the judgment and complains of alleged errors in excluding evidence tendered by him in support of a specific claim for damages, consisting of the alleged depreciation of the remainder of the land resulting from the construction, maintenance and operation of a public sewer along said rights of way. The sewer will consist of a concrete tunnel throughout its entire length across appellant's property, with the exception of the portion which crosses the beach, which portion will consist of a cast-iron conduit five feet in diameter, joined on to the end of the tunnel, and laid under the beach and which will enter the ocean twenty feet underground. This open cut will be back-filled with concrete and rock, and no part of the construction, either of the conduit or tunnel, will be visible after the work is completed, and there will be no manholes or other openings upon the surface. The conduit will be extended into and the effluent therefrom will be discharged at the bottom of the ocean at a point 5,000 feet from the shore line. [1] Defendant offered evidence tending to prove the nature of the effluent to be deposited into the ocean from the sewer, the zone of contamination which would thereby be created, and the direction of the winds, waves, and ocean currents. The purpose of the evidence thus tendered was to support the contention of defendant that the atmosphere around defendant's property would be contaminated with gases *560 blown in from the ocean, and that the shore line would be defiled with sewage. The court sustained plaintiff's objections and excluded the offered evidence relating to the question of damages. It is necessary, in stating our reasons for the conclusions we have reached as to the correctness of the rulings of the court, to briefly outline the basis of the defendant's right to compensation. If, under plaintiff's proposed plan, gases would probably escape or sewage would be deposited from the conduit constructed on the easement, to or upon the condemned portion of the land, or the remainder of it, the damage resulting therefrom would be recoverable in the present action. (City of Pasadena v. Stimson, 91 Cal. 238 [27 P. 604]; Page v. Oklahoma City, 129 Okl. 28 [263 P. 448]; Richardson v. City of Centerville, 137 Iowa, 253 [114 N.W. 1071]; Lincoln v. Commonwealth, 164 Mass. 368 [41 N.E. 489]; Cowper Essex v. Local Board of Acton, L. R., 14 App. Cas. 153; Joplin Cons. Min. Co. v. Joplin, 124 Mo. 129 [27 S.W. 406]; Nichols on Eminent Domain, p. 63; City of Omaha v. Cramer, 25 Neb. 489 [41 N.W. 295, 13 Am. St. Rep. 504]; Board of Trade Tel. Co. v. Darst, 192 Ill. 47 [61 N.E. 398, 85 A.L.R. 288]; Lawlor v. Southern Pac. Co., 39 Cal. App. 97 [178 P. 165]; Gottschalk v. Chicago, B. & Q. R. R. Co., 14 Neb. 550 [16 N.W. 475, 17 N.W. 120].) The evidence does not show that such conditions will be created upon the lands of defendant. The offered evidence related solely to supposed conditions which may result from the action of the winds, ocean currents, and waves upon the sewer effluent after it has been deposited at the bottom of the ocean nearly a mile at sea. While it cannot be doubted that the pollution of the air over defendant's property and the defilement of the beach area, if the same should ever occur, would directly interfere with the use and detract from the value of the property, the questions which would be presented in such a case are not the same as though the damage came directly from the conduit located upon the land. [2] Appellant advances, as one reason why the court should have received evidence of possible future damage by means of the winds and ocean currents, the rule that all damages sustained by the landowner by reason of the condemnation must be recovered in the action in which the land *561 is taken. (East Bay Municipal Utility Dist. v. Lodi, 120 Cal. App. 740, 748 [8 PaCal.2d 532]; Sternes v. Sutter Butte Canal Co., 61 Cal. App. 737 [216 P. 66]; Lewis on Eminent Domain, page 1313.) While the soundness of the rule may not be questioned, and while the converse of this rule relied upon by respondent is also well established, to the effect that damages not necessarily included in the issues in the condemnation action may be recovered in a subsequent action, neither rule is helpful in determining what claims are barred and what are not barred by the judgment of condemnation. More pertinent to this question is the statement found in Lewis on Eminent Domain, third edition, volume 2, pages 1451, 1452, in which it is said that "damages to the remainder by what is done elsewhere than on the part taken are not to be considered. Thus, where parts of certain lots were taken for a railroad and damages assessed therefor, and the parts not taken were damaged by the railroad crossing and obstructing a street upon which the lots abutted at some distance from the lots, it was held that the latter damages were not included in the settlement and an action would lie to recover the same". To the same effect are Atchison & N. R. Co. v. Boerner, 45 Neb. 453 [63 N.W. 787]; Perrine v. Pennsylvania Ry. Co., 72 N. J. L. 398 [61 A. 87]; Eaton v. Boston & Maine R. R. Co., 51 N. H. 504 [12 Am. Rep. 147]. [3] An owner, whose land is being condemned in part, may not recover damages in the condemnation action to the remainder of his land caused by the manner in which the works are to be constructed or operated on the lands of others. The detriment for which he may recover compensation is that which will result from the operation of the works upon his land alone. (Keller v. Miller, 63 Colo. 304 [165 P. 774], and cases cited; Oregon-Washington R. & Nav. Co. v. Campbell, 34 Idaho, 601 [202 P. 1065]; Walker v. Old Colony etc. R. Co., 103 Mass. 10 [4 Am. Rep. 509]; Campbell v. United States, 266 U.S. 368 [45 S. Ct. 115, 69 L. Ed. 328].) Defendant's objection to the application of this rule is that it would allow plaintiff to do indirectly what it may not do directly and that therefore it makes no difference that the supposed injury to his lands is traceable to conditions arising at some far distant point. The rule as it should be applied here, however, goes to the question of defendant's remedy, *562 and it is especially applicable to the facts of the present case, as we shall point out. There is a basic difference between acts committed on the land taken, which affect the owner's interests therein or his remaining lands, and acts committed by authority of the state upon lands or waters owned and controlled by the state and which are held for public use. [4] The oceans and other navigable salt waters under state control may be used for public purposes as the state may see fit, and the owner of abutting lands must suffer without compensation such damages as his lands sustain so long as the acts which are the cause of the damage do not constitute a nuisance. Thus, while riparian owners upon a stream above tide water are entitled to compensation where their lands are damaged by the discharge of sewage into the stream, the same is not true as to riparian owners whose lands are located on a stream where the tide ebbs and flows. (Seufferle v. MacFarland, 28 App. (D. C.) 94; Stevens v. Paterson & N. R. Co., 34 N. J. L. 532 [3 Am. Rep. 269]; Gray v. Paterson, 60 N. J. Eq. 385 [45 A. 995, 83 Am. St. Rep. 642, 48 L.R.A. 717].) In Sayre Co. v. Newark, 60 N. J. Eq. 361 [45 A. 985, 83 Am. St. Rep. 629, 48 L.R.A. 722], a case involving the discharge of sewage in the tide waters of the Passaic River, the court said: "Indeed, the history of sewers shows that from time immemorial the right to connect them with navigable streams has been regarded as part of the jus publicum. ... And, whenever tidal streams could conveniently be reached, they have been employed as the medium of discharge to the sea. Such a use of public waters must necessarily entail some defilement. The degree of pollution to be permitted is a matter over which the legislature has full power of control. ... We have, therefore, the city of Newark, a public corporation, executing within the bounds of its discretion and with care, a franchise lawfully granted to it by the legislature for a public purpose, but thereby producing consequential damage to the complainants. Such damage is a loss for which there is no remedy. It is a burden to which the sufferers must submit, as members of the community from which they receive compensatory benefits." In City of Hampton v. Watson, 119 Va. 95 [89 S.E. 81, L.R.A. 1916F, 189], the same question was involved. In holding that a lessee from the state of submerged lands, used *563 as an oyster bed, could not recover for damage thereto caused by the discharge of sewage into Hampton Creek, which was a large navigable body of salt water, the court said: "Since the state holds its tidal waters and the beds thereof for the benefit of all the public, we are of opinion that the city of Hampton has the right to use the waters of Hampton creek for the purpose of carrying off its refuse and sewage to the sea, so long as such use does not constitute a public nuisance, and as such be discontinued by the legislature, which has control over the extent to which these waters may be so used. The sea is the natural outlet for all the impurities flowing from the land, and the public health demands that our large and rapidly growing seacoast cities should not be obstructed in their use of this outlet, except in the public interest. One great natural office of the sea and of all running waters is to carry off and dissipate, by their perpetual motion and currents, the impurities and offscourings of the land. The owner of any lands bordering upon the sea may lawfully throw refuse matter into it, provided he does not create a nuisance to others. And there can be no doubt that public bodies and officers, charged by law with the power and duty of constructing and maintaining sewers and drains for the benefit of the public health, have an equal right." [5] It follows from the principles we have stated that defendant was entitled to an award in the amount of his damage resulting from the severance of the easement from the remainder of his land (which he received), and also for the depreciation in value of his land caused by the construction and operation of the improvement as proposed, and that in fixing the amount of the damage it was proper that the jury should consider (as it was allowed to do) the detriment caused by the existence of the sewer conduit through defendant's land and the manner in which the conduit would be maintained and operated upon the land taken. [6] But any damage attributable to the mere fact that plaintiff has located its sewer outlet in the ocean in proximity to defendant's land is damnum absque injuria, and any detriment which may be suffered by defendant in the future, occasioned by the wafting of odors from the sewer shoreward, or from the pollution of his beach lands through the use of the sewer, not discharged from that portion which crosses his land, may not be recovered in this action by way of damages to *564 his land. [7] The supposition that the sewer will be operated so as to become a nuisance is immaterial to the issue of damages for the taking of the land; it is a question to be settled in another action after the nuisance is alleged to have come into existence. (City of Pasadena v. Stimson, supra; Oregon-Washington R. & Nav. Co., supra.) It will be readily seen that this is a rule of necessity. It would obviously be impossible to determine, with a reasonable degree of certainty, what conditions may be created along the seacoast by the deposit of sewage at a point a mile off shore. [8] We conclude, therefore, that the court correctly excluded the offered evidence as to the possible defilement of the atmosphere and the beach caused by the action of the winds and waves upon the effluent to be deposited at sea. [9] Another ruling of the court, upon which appellant relies for a reversal, is one in which the court struck out certain of the testimony of plaintiff's witness, H. A. Laffler, who duly qualified as an expert, in which he gave it as his opinion that the remaining land of appellant would be depreciated in value in the amount of $408,630 by reason of the location, maintenance, operation and construction of the sewer in the manner proposed by respondent. Respondent moved to strike out all of the testimony of the witness with respect to damage to the remaining lands upon the ground that the opinion of the witness as to the amount of damage was based upon matters of conjecture and speculation, and upon other grounds. This motion was granted and the jury was directed to disregard the testimony of the witness as to severance damage in said amount of $408,630. Thereupon the defendant offered to prove, by the opinions of two other witnesses, damages in a large amount and of the same character as testified to by the witness Laffler. It was stipulated that said witnesses were qualified and that they would testify in all respects the same as the witness Laffler; that objection would be made upon the grounds upon which the court struck out the testimony of Laffler, and that the testimony of these witnesses would be excluded by the court. The basis of the opinion of the witness Laffler as to the severance damage given on direct examination may be briefly stated as follows: that the land as a whole was valuable for recreational purposes, for a golf club, a club house, a bathing and beach resort, and for residential purposes; that the construction *565 of the sewer would require some two years, during which time the land would be identified in the public mind as having an outfall sewer extending through it; that this publicity would be conveyed to possible and prospective buyers; that the favorable impression as to beauty and desirability of the section would be dispelled and leave play for a widespread unfavorable impression because of the construction of the sewer, and that this unfavorable impression would extend beyond possible buyers of the land as acreage to purchasers of parcels thereof after its subdivision and development. The damage estimated by the witness was 30 per cent of the value of the remaining land. In discussing this testimony we think we may fairly assume that the gist of it is found in the following statement: "When White Point is mentioned I can see that the public will say, 'O yes, that is where the county is building that big outfall sewer', and in that particular state of mind on the part of a large number of people, including possible prospective buyers, I can see there is a very great damage, which I place at $408,000." This figure, he stated, was simply a matter of judgment based upon his experience, the magnitude of the project and the publicity it would receive over a period of two years, which he believed made a depreciation of 30 per cent a very conservative one. [10] In proving damage, defendant had the unquestioned right to show by competent evidence the market value of the remainder of his land without the improvement and its value as affected by the improvement. (Southern Pac. R. R. Co. v. Hart, 3 Cal. App. 11 [84 P. 218].) But the provable damage by the improvement is limited to that caused by the part of the improvement constructed on his land. He may not recover in this action because of the fact that the sewage is to be discharged into the sea in front of his land or because of the manner in which it may be discharged. If the land value is to be depreciated for these reasons it is damnum absque injuria for all of the purposes of this action. The witness evidently had this fact in mind, for he stated, "I have not taken into consideration the extension into the ocean or the amount of sewage or any elements of that character." The damage would be the same, he stated, if construction should be stopped at the water's edge and the sewer should not be used. The entire damage would result from publicity given to the matter during the period of construction. *566 He placed particular emphasis upon the supposed fact that it would be referred to in such a way as to identify it with a location on defendant's land called "White's Point". A brief analysis of the basis of the opinion as to values will show it to be wholly intangible and fanciful. The damage to the land, as the witness visualized it, would not come from the fact that the sewer would be there and discharging its content into the ocean, but from the fact that it would be discussed by many people who would thereby become prejudiced against the locality. He did not attribute damage to the actual construction work upon the tunnel or excavation, nor did he claim that the mere existence of the deeply buried conduit would result in any measureable damage to the tract as a whole. But he undertook to attribute to the publicity the project would receive, apart from the fact of the discharge of sewage, a 30 per cent depreciation in property values. If detriment comes to defendant's land it will come alone from the use of the sewer and the proximity of the outlet. Manifestly these are the considerations that would influence prospective buyers. Since damage from this source is not recoverable in this action, if it is recoverable at all, we find nothing in the stricken testimony that would support a tangible claim for damages. The testimony stricken out was fully as speculative and conjectural as that held inadmissible upon the same grounds in Coast Counties Gas & Electric Co. v. Miller & Lux, etc., 118 Cal. App. 140 [5 PaCal.2d 34], and County of Los Angeles v. Signal Realty Co., 86 Cal. App. 704 [261 P. 536]. An award of damages based upon the quoted testimony of the witness Laffler would be a departure from the sound and just rule that damages must be established with reasonable certainty and may not be purely speculative as to amount or remote as to origin. Where it is problematical whether recoverable damage exists or has been proven, no award can be made. We are satisfied that the rulings of the court were correct and that defendant was allowed to prove all of his recoverable damage. The points we have disposed of are the only ones urged by appellant. It is unnecessary to discuss additional argument of respondent in support of the rulings of the court. The judgment is affirmed. Conrey, P. J., and York, J., concurred.

2020-12-01 14:08:18.847715+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007496PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/01/2020 08:08 AM CST - 198 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports KELLY v. KELLY Cite as 29 Neb. App. 198 Kirsten W. Kelly, appellee, v. Gary B. Kelly, appellant. ___ N.W.2d ___ Filed November 24, 2020. No. A-20-084. 1. Divorce: Child Custody: Child Support: Property Division: Alimony: Attorney Fees: Appeal and Error. In a marital dissolution action, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge. This standard of review applies to the trial court’s determinations regarding custody, child support, division of property, alimony, and attorney fees. 2. Judges: Words and Phrases. A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriv- ing a litigant of a substantial right and denying just results in matters submitted for disposition. 3. Visitation. Placing in a psychologist the authority to effectively deter- mine visitation, and to control the extent and time of such visitation, is not the intent of the law and is an unlawful delegation of the trial court’s duty. 4. Child Custody: Visitation: Stipulations. It is the responsibility of the trial court to determine questions related to custody and parenting time according to the best interests of the minor children. This is an indepen- dent responsibility and cannot be controlled by the agreement or stipula- tion of the parties themselves or by third parties. 5. Visitation: Appeal and Error. Parenting time determinations are mat- ters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court’s determination will nor- mally be affirmed absent an abuse of discretion. 6. Evidence: Appeal and Error. When evidence is in conflict, an appel- late court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.  - 199 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports KELLY v. KELLY Cite as 29 Neb. App. 198 7. Child Support: Rules of the Supreme Court. The Nebraska Child Support Guidelines recognize other incidents of support that are wholly or partly outside of the monthly installment, including the expenses specified in Neb. Rev. Stat. § 42-364.17 (Reissue 2016). 8. Statutes: Legislature: Intent. Components of a series or collection of statutes pertaining to a certain subject matter are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, har- monious, and sensible. 9. Child Support: Taxation: Presumptions. In general, the custodial par- ent is presumptively entitled to the federal tax exemption for a depen- dent child. 10. Child Support: Taxation: Waiver. A court may exercise its equitable powers and order the custodial parent to execute a waiver of his or her right to claim the tax exemption for a dependent child if the situation of the parties so requires. 11. Divorce: Property Division: Alimony. In dividing property and consid- ering alimony upon a dissolution of marriage, a court should consider four factors: (1) the circumstances of the parties, (2) the duration of the marriage, (3) the history of contributions to the marriage, and (4) the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of each party. In addition, a court should consider the income and earning capacity of each party and the general equities of the situation. 12. Alimony: Appeal and Error. In reviewing an alimony award, an appel- late court does not determine whether it would have awarded the same amount of alimony as did the trial court, but whether the trial court’s award is untenable such as to deprive a party of a substantial right or just result. 13. Alimony. Alimony is not a tool to equalize the parties’ income, but a disparity of income or potential income might partially justify an ali- mony award. 14. Divorce: Attorney Fees. In awarding attorney fees in a dissolution action, a court shall consider the nature of the case, the amount involved in the controversy, the services actually performed, the results obtained, the length of time required for preparation and presentation of the case, the novelty and difficulty of the questions raised, and the customary charges of the bar for similar services. Appeal from the District Court for Saunders County: Christina M. Marroquin, Judge. Affirmed in part as modi- fied, and in part vacated.  - 200 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports KELLY v. KELLY Cite as 29 Neb. App. 198 Mark A. Steele, of Steele Law Office, for appellant. John H. Sohl for appellee. Moore, Bishop, and Welch, Judges. Bishop, Judge. I. INTRODUCTION Gary B. Kelly appeals from the decree entered by the Saunders County District Court dissolving his marriage to Kirsten W. Kelly, awarding legal and physical custody of the parties’ three children to Kirsten, and ordering Gary to pay child support and alimony. Gary challenges decisions made related to the parenting plan, private school tuition, extracur- ricular and other expenses, tax exemptions, equalization of the marital estate, alimony, and attorney fees. We affirm in part as modified, and in part vacate. II. BACKGROUND Gary and Kirsten married in September 2007, and three children were born during the marriage: the first in 2008, the second in 2009, and the third in 2010. Kirsten separated from Gary in November 2018 and moved with the minor children out of the marital home. Kirsten then sought and obtained a protection order against Gary based on allegations of domes- tic abuse by Gary against her and the children for which he received a criminal citation and was sentenced to probation. Kirsten filed for divorce shortly after the separation in November 2018. On January 14, 2019, the district court granted Kirsten’s motion for temporary legal and physical custody. The court restricted Gary from contacting the children until the children met with a mental health professional and that pro- fessional gave a report and recommendation to the court. The temporary order required Gary to pay $2,109 per month in child support. The temporary order also required Gary to pay $3,606 per month in spousal support, to be reduced to $1,708 per month beginning in February. Gary was also responsible  - 201 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports KELLY v. KELLY Cite as 29 Neb. App. 198 for two-thirds of daycare and health care expenses incurred for the children. The court entered a second temporary order on February 5 concerning Gary and Kirsten’s agreement to the sale of the marital residence. On September 30, the court modi- fied the first temporary order to allow Gary to have supervised therapeutic sessions with the oldest child. Trial took place on October 24 and 25, 2019. In the analy- sis section below, we will discuss the trial evidence relevant to the errors assigned. A decree dissolving the marriage was entered by the district court on November 12. Pursuant to the decree and an order nunc pro tunc entered shortly thereafter on November 18, and another nunc pro tunc order entered on February 3, 2020, the district court awarded Kirsten legal and physical custody of the minor children, noting “there [was] credible evidence that [Gary] has perpetuated child abuse and domestic intimate partner abuse.” The court concluded that Kirsten should have sole legal and physical custody, which was “in the best interest of the minor children.” The decree established certain provisions in the parenting plan for Gary, which consists of the following four phases: PHASE 1 - THERAPUTIC VISITS: [Gary] shall have family therapy with the minor children twice a month (every-other-week). The therapeutic session shall be con- ducted by a licensed mental health practitioner designated as the therapist for the child. Family therapy sessions shall commence immediately between [the oldest child] and [Gary]. Family therapy sessions between [Gary] and the other two minor children shall commence upon the rec- ommendation of the minor children’s therapist. [Kirsten] shall sign all necessary releases to ensure that [Gary] can communicate with the children’s therapist(s). PHASE 2 - SUPERVISED VISITS: At the recom- mendation of each child’s treating therapist, visita- tion shall move to supervised visits. These shall occur every Wednesday evening from 3:30 (after school) until 7:00 p.m. and every-other Saturday from 1:00 p.m. until  - 202 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports KELLY v. KELLY Cite as 29 Neb. App. 198 5:00 p.m. Visits shall be supervised by [one of Gary’s adult children from a prior marriage], or another third party as agreed upon by the parties, or a professional agency at the expense of [Gary]. [Gary] shall not con- sume alcohol immediately prior to or during the visita- tion. [Gary] shall not physically discipline the minor children. Provided there are no safety concerns, visitation shall move to Phase 3 after six months. PHASE 3 - UNSUPERVISED VISITS: At the rec- ommendation of each child’s treating therapist, visita- tion shall move to unsupervised visits. These shall occur every Wednesday evening from 3:30 (after school) until 7:00 p.m. and every-other Saturday from 1:00 p.m. until 5:00 p.m. [Gary] shall not consume alcohol immediately prior to or during the visitation. [Gary] shall not physi- cally discipline the minor children. Provided there are no safety concerns, visitation shall move to Phase 4 after six months. PHASE 4 - ONGOING PARENTING PLAN: At the recommendation of each child’s treating therapist, visita- tion shall occur as follows: [Gary] shall a [sic] have parenting time every Wednesday evening from 3:30 p.m. until 7:30 p.m. [Gary] shall have every other weekend from Friday at 3:30 p.m. until Sunday at 5:00 p.m. Phase 4 of the parenting plan also included a holiday parenting time schedule. Relevant to this appeal, the decree also required Gary to pay $1,980 per month in child support for three children. The district court divided expenses such that Gary would be responsible for 70 percent of childcare and extracurricular expenses incurred on behalf of the children and 50 percent of the cost of tuition for the children to continue attending pri- vate school. Gary was also ordered to pay other miscellaneous expenses related to the children. The decree gave Kirsten the sole right to claim the children for state and federal income  - 203 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports KELLY v. KELLY Cite as 29 Neb. App. 198 tax purposes. As part of the division of marital property, the court ordered Gary to pay Kirsten an equalization payment of $15,841. The decree additionally required Gary to pay Kirsten $500 per month in alimony for 5 years and awarded Kirsten $8,000 in attorney fees. Following the entry of the decree, Gary filed a motion for new trial and/or reconsideration. The district court denied his motion on January 9, 2020. Gary then timely filed this appeal. III. ASSIGNMENTS OF ERROR Gary claims the district court erred by (1) formulating an unreasonably restrictive phased parenting plan, (2) requiring Gary to pay 50 percent of private school tuition for the chil- dren, (3) requiring Gary to pay 70 percent of the costs for the children’s extracurricular activities, (4) allocating solely to Kirsten the right to claim the children for state and federal income tax purposes, (5) ordering Gary to pay Kirsten a prop- erty equalization payment of $15,841, (6) ordering Gary to pay Kirsten alimony of $500 per month for 5 years, and (7) ordering Gary to pay Kirsten $8,000 for attorney fees. IV. STANDARD OF REVIEW [1,2] In a marital dissolution action, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge. Doerr v. Doerr, 306 Neb. 350 , 945 N.W.2d 137 (2020). This standard of review applies to the trial court’s determinations regarding custody, child support, division of property, alimony, and attor- ney fees. Id. A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriv- ing a litigant of a substantial right and denying just results in matters submitted for disposition. Id. V. ANALYSIS 1. Parenting Plan The district court ordered the implementation of the phased parenting plan described above. Based on the evidence  - 204 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports KELLY v. KELLY Cite as 29 Neb. App. 198 presented at trial, the district court found the phased parent- ing plan to be in the best interests of the minor children. In its decree, the court stated that it found “by a preponderance of evidence that there is credible evidence that [Gary] perpetuated child abuse and domestic intimate partner abuse” and “limita- tion on parenting time between [Gary] and the minor children must be implemented to provide for their safety and well- being.” Notably, Neb. Rev. Stat. § 43-2932 (1) (Reissue 2016) provides that when there is evidence of child abuse or domestic intimate partner abuse, limitations on parenting time may be imposed that are “reasonably calculated to protect the child or child’s parent from harm.” There is considerable evidence in the record related to the inappropriate, harmful behaviors in which Gary engaged with either the children and/or Kirsten. It is unnecessary to detail those instances here given the limited nature of Gary’s assigned error. Gary does not argue that the phased approach to parent- ing time is by itself problematic. Rather, he contends that the “phases required the approval and recommendation for each phase by the children’s therapist and last for a period of six months between phases” and that this “restrictive parenting time . . . was arbitrary and unsupported by the evidence, and unjustifiably interferes with his parenting relationship with the minor children.” Brief for appellant at 13. He asserts that he has “taken the necessary steps to modify his behaviors and testified to his ability to interact successfully with the minor children.” Id. at 15. He further contends that “the duration of any phases should not be for definitive times; but instead moni- tored and moved forward under direct therapist supervision and recommendations.” Id. We understand Gary’s arguments as challenging the specific 6-month duration of the parenting phases and not allowing for greater flexibility; he suggests a faster progression through each phase should be permitted if recommended by the thera- pist, based upon the parenting plan being “closely monitored and supervised for cooperation and progress.” Id. We do not  - 205 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports KELLY v. KELLY Cite as 29 Neb. App. 198 read the parenting plan to be quite as restrictive as Gary sug- gests, at least as to Phase 2 through Phase 4. [3,4] We begin our analysis with the understanding that while it is not an abuse of discretion for a trial court to order counseling, “placing in a psychologist the authority to effec- tively determine visitation, and to control the extent and time of such visitation, is not the intent of the law and is an unlaw- ful delegation of the trial court’s duty.” Deacon v. Deacon, 207 Neb. 193 , 200, 297 N.W.2d 757 , 762 (1980), disapproved on other grounds, Gibilisco v. Gibilisco, 263 Neb. 27 , 637 N.W.2d 898 (2002). It is the responsibility of the trial court to deter- mine questions related to custody and parenting time accord- ing to the best interests of the minor children. See id. This is an independent responsibility and cannot be controlled by the agreement or stipulation of the parties themselves or by third parties. Id. Therefore, in this case, it was necessary for the district court to provide a specified duration of time for each parenting phase rather than leaving the transition from phase to phase solely at the discretion of a therapist. Such a delegation of author- ity from the district court to each child’s therapist would have constituted error whether reviewed for plain error or an abuse of discretion. See, Hajenga v. Hajenga, 257 Neb. 841 , 601 N.W.2d 528 (1999) (order that father’s parenting time would be increased at discretion of family therapist was wrongful abdication of trial court’s duty and constituted plain error; plain error affects substantial right and is of such nature that to leave it uncorrected would cause miscarriage of justice or result in damage to integrity, reputation, and fairness of judi- cial process); Deacon v. Deacon, supra (not abuse of discretion to order counseling, but portion of order effectively placing authority in psychologist to determine visitation and control extent and time of such visitation was unlawful delegation of trial court’s duty). But see In re Guardianship of K.R., 26 Neb. App. 713 , 923 N.W.2d 435 (2018) (trial court did not improp- erly delegate decisions regarding visitation, family therapy,  - 206 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports KELLY v. KELLY Cite as 29 Neb. App. 198 and guardianship to child’s therapist where trial court expressly reserved authority to make those decisions if and when child’s therapist stated child was ready for such steps). Accordingly, as for Phase 2 through Phase 4, the district court did not abuse its discretion in ordering fixed durations before parenting time had to transition to the next phase, in the absence of safety concerns. It was necessary for the court to impose limits on each phase so that the transitions were not left completely at the discretion of a therapist. Further, as to Gary’s argument about flexibility to allow for faster progres- sion through each phase if recommended by the therapist, we read the parenting plan to provide that flexibility. Gary’s supervised parenting time could transition to unsupervised parenting time at the recommendation of each child’s therapist, which could occur before 6 months on such a recommenda- tion. But unless there were safety concerns, the supervised parenting time had to transition to unsupervised parenting time after 6 months. The same applies to the transition from unsupervised parenting time to the ongoing parenting plan. Implicit in the plan is that if a child’s therapist determined that safety concerns still existed at the 6-month mark for the next transition, the therapist could elect to not recommend moving to the next parenting phase, and if Gary disagreed with that decision, the matter would have to return to the district court for a determination as to whether an extension of time was warranted under the parenting phase at issue. Therefore, Phase 2 through Phase 4 provided flexibility for faster progression upon the recommendation of each child’s therapist, but also limited each phase to 6 months, barring safety concerns, so that the court, not the therapist, was determining the maximum duration of those phases. However, while not specifically assigned as error by Gary, we do find plain error regarding the lack of a specified dura- tion for therapeutic visits in Phase 1, as well as the lack of a specified time for when Gary would commence family therapy sessions with the two younger children. Unlike the  - 207 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports KELLY v. KELLY Cite as 29 Neb. App. 198 other phases, the court delegated to each child’s therapist the discretion to determine when Gary could move from thera- peutic visits in Phase 1 to supervised visits in Phase 2. And as to the two younger children, the family therapy sessions were to commence “upon the recommendation of the minor children’s therapist.” As discussed above, this constitutes an improper delegation of authority from the district court to each child’s therapist. See Hajenga v. Hajenga, supra (order that father’s parenting time would be increased at discretion of family therapist was wrongful abdication of trial court’s duty and constituted plain error). To eliminate this improper delega- tion of authority to each child’s therapist, and considering the district court’s determination that 6-month blocks were appro- priate for the other transition phases, we modify the parenting plan to provide that transition to “Phase 2 - SUPERVISED VISITS” shall take place after 6 months of the therapeutic vis- its described in Phase 1, provided there are no safety concerns. Further, to the extent family therapy has not commenced with the two younger children, that should commence immediately, unless there are safety concerns. If safety concerns exist, given the amount of time that has already lapsed during the pendency of this appeal, the matter will need to be scheduled before the district court for further consideration of when such family therapy shall commence for the two younger children. [5,6] With regard to the district court’s determination of 6-month transitional phases rather than phases of shorter dura- tion, we cannot say the court abused its discretion, particu- larly since the parenting plan did provide the flexibility for faster progression than 6 months if recommended by a child’s therapist. Parenting time determinations are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court’s determina- tion will normally be affirmed absent an abuse of discretion. Bornhorst v. Bornhorst, 28 Neb. App. 182 , 941 N.W.2d 769 (2020). When evidence is in conflict, an appellate court consid- ers, and may give weight to, the fact that the trial judge heard  - 208 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports KELLY v. KELLY Cite as 29 Neb. App. 198 and observed the witnesses and accepted one version of the facts rather than another. Donald v. Donald, 296 Neb. 123 , 892 N.W.2d 100 (2017). Gary’s arguments focus largely on efforts he has been mak- ing to be a better parent. And while such efforts are to be commended, the district court also had to consider what was in the best interests of the children. It is evident that the court put in place a transitional schedule that will give the children sufficient time and space to heal from the past traumatic expe- riences caused by Gary’s abusive behaviors toward the children and Kirsten. As just one example of the need for caution in moving forward with parenting time, there was evidence that as a result of Gary’s interactions with one child, the child went to Kirsten crying and told her “he can’t take it anymore, he just wants to kill himself.” Given the nature of the evidence under- lying the district court’s findings related to child abuse and domestic intimate partner abuse, we cannot say a graduated parenting time schedule like the one before us, as modified, was an abuse of discretion. 2. Expenses in Addition to Monthly Child Support In calculating its order for child support ($1,980 per month) by using a basic net income and support calculation, work- sheet 1, the district court determined Gary’s gross monthly income to be $12,048.25 and Kirsten’s gross monthly income to be $5,000. See Neb. Ct. R. ch. 4, art. 2, worksheet 1 (rev. 2016). Gary claims the district court abused its discretion in ordering Gary to be responsible for 50 percent of the cost of private school tuition for the minor children in addition to the order to pay $1,980 per month in child support. Gary also con- tends the district court abused its discretion in ordering him to be responsible for 70 percent of all extracurricular expenses incurred on behalf of the minor children upon which the par- ties mutually agree in advance. Gary also takes issue with the court’s order requiring the parties to equally share “the cost of  - 209 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports KELLY v. KELLY Cite as 29 Neb. App. 198 school lunches (purchased from the school), required school supplies, haircuts, and items of clothing the parties expect the children to wear at both residences, i.e., winter coats, hats, mit- tens, winter boots, backpacks, and tennis shoes.” (a) Applicable Law Prior to the existence of the Nebraska Child Support Guidelines, Nebraska statutory law addressed various expenses to be considered in support orders: “A support order, decree, or judgment may include the providing of necessary shelter, food, clothing, care, medical support as defined in section 43-412, medical attention, expenses of confinement, education expenses, funeral expenses, and any other expenses the court may deem reasonable and necessary.” See Neb. Rev. Stat. § 42-369 (3) (Cum. Supp. 2018). In 1984, Congress required the states to develop guidelines for child support awards; noncompliance would result in the loss of federal funds for various programs. See Schmitt v. Schmitt, 239 Neb. 632 , 477 N.W.2d 563 (1991). Nebraska com- plied in 1985 with the passage of 1985 Neb. Laws, L.B. 7, § 18, 2d Spec. Sess. See Neb. Rev. Stat. § 42-364.16 (Reissue 2016) (requires Nebraska Supreme Court to create guidelines that serve as rebuttable presumption in setting child support obliga- tions). See, also, Schmitt v. Schmitt, supra. The Nebraska Child Support Guidelines subsequently became operative October 1, 1987. See Schmitt v. Schmitt, supra. [7] Then, in 2008, the Legislature passed 2008 Neb. Laws, L.B. 1014, § 33, codified at Neb. Rev. Stat. § 42-364.17 (Reissue 2016), which specifically sets forth certain categories of expenses that could be considered in determining parents’ financial responsibilities related to their children; it provides as follows: A decree of dissolution, legal separation, or order establishing paternity shall incorporate financial arrange- ments for each party’s responsibility for reasonable and necessary medical, dental, and eye care, medical  - 210 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports KELLY v. KELLY Cite as 29 Neb. App. 198 reimbursements, day care, extracurricular activity, educa- tion, and other extraordinary expenses of the child and calculation of child support obligations. The Nebraska Supreme Court has clarified that § 42-364.17 provides categories of expenses incurred by a child which can be ordered by a trial court in addition to the monthly child sup- port calculation determined under the guidelines. “The com- mon meaning of ‘support’ clearly includes all of the incidents of a child’s needs.” Caniglia v. Caniglia, 285 Neb. 930 , 934, 830 N.W.2d 207 , 211 (2013). One incident of support is the regular monthly payment established under the Nebraska Child Support Guidelines. See Caniglia v. Caniglia, supra. “But the guidelines recognize other incidents of ‘support’ that are wholly or partly outside of the monthly installment.” Caniglia v. Caniglia, 285 Neb. at 934 , 830 N.W.2d at 211. “The expenses stated in § 42-364.17—including, among others, extracurricular, education, and other extraordinary expenses— merely represent other incidents of ‘support’ to be addressed in a dissolution decree.” Caniglia v. Caniglia, 285 Neb. at 934 , 830 N.W.2d at 211. Thus, a district court has the authority to order the categories of expenses specified in § 42-364.17 in addition to the monthly child support obligation calculated under the guidelines. Notably, as applicable here, § 42-364.17 refers specifi- cally to extracurricular, education, and other “extraordinary” expenses that may be considered in addition to the monthly child support obligation, while § 42-369(3) refers more gen- erally to “necessary shelter, food, clothing, care,” and educa- tion expenses, and “any other expenses the court may deem reasonable and necessary.” Under § 42-364.17, any expense beyond “reasonable and necessary medical, dental, and eye care, medical reimbursements, day care, extracurricular activ- ity, [and] education” would have to qualify as “extraordinary.” Whereas, under § 42-369(3), expenses may include neces- sary food, clothing, and care, as well as any other expenses deemed “reasonable and necessary” by the court. The older  - 211 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports KELLY v. KELLY Cite as 29 Neb. App. 198 statute certainly contemplates a very broad range of expenses associated with caring for a child, while the newer statute has narrowed the types of expenses that may coincide with a calcu- lation of child support obligations. [8] To reconcile the two statutes, we note that child support statutes should be read in conjunction with the Nebraska Child Support Guidelines. See Hoover v. Hoover, 2 Neb. App. 239 , 508 N.W.2d 316 (1993). Also, components of a series or col- lection of statutes pertaining to a certain subject matter are in pari materia and should be conjunctively considered and con- strued to determine the intent of the Legislature, so that differ- ent provisions are consistent, harmonious, and sensible. Tyler F. v. Sara P., 306 Neb. 397 , 945 N.W.2d 502 (2020). Because the broader, more general terms contained in § 42-369(3) preceded the adoption of the guidelines and the passage of § 42-364.17, we construe the guidelines and § 42-364.17 to control what categories of expenses can be ordered in addition to the monthly child support obligation determined under the guidelines. Since there were no mandatory child support guide- lines in existence until the passage of the guidelines in 1987, the broader language of § 42-369(3) essentially provided for types of expenses that could be considered when determining support for children, including basic necessities such as shelter, food, and clothing. However, the adoption of the guidelines necessarily incorporated basic necessities such as shelter, food, and clothing, and the passage of § 42-364.17 further delineated specific expenses that could be ordered in addition to those basic necessities now incorporated into the guidelines. To con- strue § 42-369(3) to require a parent to pay for basic necessi- ties such as shelter, food, and clothing in addition to a monthly child support obligation which has been calculated using the basic net income and support calculation, worksheet 1, would make inexplicable what the monthly child support was other- wise intended to cover in terms of a child’s needs. However, an order requiring a parent to contribute to a child’s clothing expenses, or other reasonable and necessary  - 212 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports KELLY v. KELLY Cite as 29 Neb. App. 198 direct expenditures, may be appropriate in joint physical cus- tody situations. In those cases, the determination of each par- ent’s monthly child support obligation is significantly lower when using the joint physical custody child support calcula- tion, worksheet 3, due to the more equal sharing of parenting time between the parents. See Neb. Ct. R. ch. 4, art. 2, work- sheet 3 (rev. 2007). Neb. Ct. R. § 4-212 (rev. 2011), related to joint physical custody, provides in relevant part: “If child support is determined under this paragraph, all reasonable and necessary direct expenditures made solely for the child(ren) such as clothing and extracurricular activities shall be allocated between the parents, but shall not exceed the proportion of the obligor’s parental contributions . . . .” Therefore, in addi- tion to the monthly child support obligation calculated for joint physical custody, a trial court may apportion between the parents a child’s clothing and other reasonable and necessary direct expenditures. With these legal principles in mind, we now consider the expenses Gary was ordered to pay in addition to his monthly child support obligation which was calculated using the basic net income and support calculation, worksheet 1, rather than the joint physical custody child support calculation, work- sheet 3. (b) Private School Tuition During the course of the marriage, Gary and Kirsten enrolled the children in a private school. Kirsten testified that she had continued the children’s enrollment in the same private school after the parties separated and during the dissolution proceed- ings. Gary testified that he objected to having the children attend private school, but had allowed the children’s attendance during the marriage. Gary suggests the district court had the discretionary authority to provide a support order to include educational expenses pursuant to § 42-369(3); however, he claims this constitutes a deviation from the Nebraska Child Support  - 213 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports KELLY v. KELLY Cite as 29 Neb. App. 198 Guidelines. In response, Kirsten also directs us to § 42-364.17. Gary claims that because Kirsten “unilaterally [chose] to con- tinue to enroll the minor children in a private school” and “offered [no evidence] regarding the minor children[’s] need for such an education, or that it had any beneficial [e]ffect or consequences,” then the cost of the children’s tuition should be Kirsten’s responsibility alone. Brief for appellant at 18. He therefore contends that making him responsible for 50 percent of the cost of private school tuition for the children was an abuse of discretion. Education is one of the expenses specifically referenced in § 42-364.17, and it therefore represents a type of support the district court may award in addition to the monthly child sup- port obligation. See Caniglia v. Caniglia, 285 Neb. 930 , 830 N.W.2d 207 (2013). Private school education has been recog- nized as an expense that may be allocated separately from a monthly child support award. See Becher v. Becher, 299 Neb. 206 , 908 N.W.2d 12 (2018) (affirming district court’s order directing father to pay school tuition for children’s private school education). In light of the evidence that the children have attended the same private school throughout the marriage and the dissolu- tion process, we cannot say the district court abused its discre- tion in ordering Gary to be responsible for 50 percent of the children’s private school tuition costs. Although Gary is pay- ing $1,980 per month in child support and $500 per month in alimony ($2,480 per month total support), his gross monthly income of $12,048.25 is still much greater than Kirsten’s gross monthly income of $5,000. Even after adjusting for Gary’s outgoing support obligations and Kirsten’s incoming support amounts, Gary can afford to contribute equally with Kirsten to maintain their children in the education environments which were established during the marriage. Maintaining stability and continuity in the children’s educational routine is cer- tainly in their best interests. See State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933 , 932 N.W.2d 692 (2019) (relevant  - 214 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports KELLY v. KELLY Cite as 29 Neb. App. 198 considerations of child’s best interests include stability in child’s routine). (c) Extracurricular Expenses We likewise cannot say that the district court abused its discretion by making Gary responsible for 70 percent of the extracurricular expenses incurred on behalf of the children that the parties mutually agree upon in advance. As noted pre- viously, extracurricular expenses are specifically referenced in § 42-364.17; this is another type of support that may be awarded in addition to the monthly payment established by the child support guidelines. See Caniglia v. Caniglia, supra. Notably, the district court requires the sharing of only those extracurricular expenses that the parties have agreed to in advance, although the court also noted that consent should not be unreasonably withheld. This provision appears to encour- age both parents to participate in making decisions about such activities for their children. Further, with the contributions of both parents to the costs associated with such activities, they will likely be more mutually supportive of their children’s involvement in those activities. We cannot say that the district court abused its discretion in its allocation of these expenses between the parties in this manner. (d) Other Miscellaneous Expenses With respect to the part of the order requiring Gary to be responsible for half of “the cost of school lunches (purchased from the school), required school supplies, haircuts, and items of clothing the parties expect the children to wear at both residences, i.e., winter coats, hats, mittens, winter boots, back- packs, and tennis shoes,” we find the district court abused its discretion. As discussed above, § 42-364.17 sets forth those expenses which a parent may be ordered to pay in addition to his or her monthly child support obligation. These include “reason- able and necessary medical, dental, and eye care, medical  - 215 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports KELLY v. KELLY Cite as 29 Neb. App. 198 reimbursements, day care, extracurricular activity, education, and other extraordinary expenses of the child.” While it is con- ceivable that school lunches and school supplies might qualify as an “education” expense, we conclude that such a broad read- ing is not warranted in the present matter. With a child support award of $1,980 per month, these items can be adequately cov- ered and seem better characterized as basic necessities covered by the monthly child support obligation. As for the order’s remaining items, haircuts and clothing, the only category under which they could possibly qualify under § 42-364.17 would be “extraordinary expenses.” We conclude that such expenses fall within the basic necessities intended to be covered by a monthly child support obligation calculated using the basic net income and support calcula- tion, worksheet 1, and do not rise to the level of “extraordi- nary expenses.” The district court abused its discretion in ordering Gary to pay for these expenses, and we therefore vacate this portion of the decree. 3. Tax Dependency Exemptions Gary claims on appeal that the district court abused its dis- cretion in awarding Kirsten the sole right to claim the children for state and federal income tax purposes. For purposes of the district court’s child support calcula- tion, Gary’s gross income was calculated to be $12,048.25 per month and Kirsten’s was calculated to be $5,000 per month. The district court ordered Gary to pay additional expenses described previously in addition to the monthly child support sum of $1,980. Gary asserts that because he “is paying [his] proportion- ate share of direct living expenses for the care of the minor children through his child support obligation[,] [h]e should receive some benefit for this obligation in the form of a tax exemption.” Brief for appellant at 20-21. He further claims his marginal tax rate would be “detrimentally unfair to [Kirsten’s]  - 216 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports KELLY v. KELLY Cite as 29 Neb. App. 198 marginal tax rate, claiming the tax dependency credits for all three minor children.” Id. at 21. [9,10] A tax dependency exemption is an economic ben- efit nearly identical to an award of child support or alimony. Anderson v. Anderson, 290 Neb. 530 , 861 N.W.2d 113 (2015). In general, the custodial parent is presumptively entitled to the federal tax exemption for a dependent child. Id. But a court may exercise its equitable powers and order the custodial par- ent to execute a waiver of his or her right to claim the tax exemption for a dependent child if the situation of the parties so requires. Id. Although Gary claims that the district courts “have routinely equally divided the tax dependency exemptions between the parents,” brief for appellant at 21, we note that a departure from this routine does not necessarily equate to an abuse of discretion. The considerations of the district court included the totality of the facts and circumstances of the parties and were not constrained to comparisons of income and allocation of expenses. We cannot say the district court abused its discretion in granting Kirsten the sole right to claim the minor children for state and federal income tax purposes. 4. Equalization Payment Gary does not disagree with “the identification of marital assets and liabilities, nor the valuations determined by the [dis- trict court].” Brief for appellant at 22. However, he contends the district court abused its discretion in determining he owed Kirsten a payment of $15,841 to equalize the marital estate. He asserts the property division was not supported by the evidence related to the sale of the marital residence, as the division of the marital residence and all liens and encumbrances against it had been divided prior to trial and were erroneously factored into the district court’s calculations. We agree that the evidence supports Gary’s argument. While the dissolution action was pending, Kirsten motioned the district court to order the sale of the marital residence.  - 217 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports KELLY v. KELLY Cite as 29 Neb. App. 198 The district court granted this order. The closing on the sale occurred on May 2, 2019; trial took place in October. At the time of closing, Gary’s support obligations under the January 14 temporary order were in arrears; he owed $5,066.14 in child support and $9,819.09 in spousal support (total owed of $14,885.23). According to the closing statement for the marital home received into evidence, the sale price was $196,500. The clos- ing statement reflects that the mortgage and home equity line of credit encumbering the marital residence, as well as all other fees associated with the closing, were deducted from the sale proceeds. Also, as part of the closing costs, the combined amount of Gary’s outstanding support obligations ($14,885.23) was deducted for distribution to Kirsten. The remaining net proceeds of the sale amounted to $14,954.71 and were placed into escrow. We note that the net sale proceeds would have totaled $29,839.94 but for the payment made to pay off Gary’s outstanding support obligations. Ordinarily, such net proceeds would have been split in half, resulting in the receipt by each party of $14,919.97. However, instead of receiving his share of the net profit, Gary’s share was applied to his outstanding sup- port obligations of $14,885.23. Gary contends that the remain- ing balance of $14,954.71 constituted Kirsten’s one-half share and that this amount was distributed to Kirsten. The record is unclear as to whether the $14,954.71 was still held in escrow at the time of trial or whether those funds had actually been distributed to Kirsten as Gary indicates. The district court’s calculation error appears to stem from Kirsten’s assets and liabilities spreadsheet, offered and received as exhibit 11. The district court adopted the values, the divi- sion, and the equalization amount of $15,841 as set forth on that exhibit. However, exhibit 11 reflects both parties receiving $22,791.59 in equity from the home, which is not supported by the closing statement. Further, exhibit 11 credits Kirsten’s equity in the home with the amounts owed by Gary in child and spousal support described previously. However, as Gary  - 218 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports KELLY v. KELLY Cite as 29 Neb. App. 198 points out, the real estate closing document shows that these outstanding obligations were deducted from his share of the house sale proceeds at the time of closing. Kirsten’s only response to Gary’s argument is that she divided the house pro- ceeds equally on her spreadsheet and deducted the delinquent support “by showing it as a negative figure” to make sure she would not be paying for half of Gary’s outstanding support obligations. Brief for appellee at 16. She does not explain why giving her the delinquent support credits on her spreadsheet was appropriate given Gary’s share of the net proceeds from the house sale had already satisfied those delinquencies. Nor does she otherwise challenge Gary’s explanation regarding the application of his share of the home equity to those outstanding support obligations. After considering the evidence in the record, we agree with Gary that the remaining net proceeds of $14,954.71 from the sale which were placed into escrow represented Kirsten’s share of the equity in the marital home and that the amount of $14,885.23 paid to Kirsten in satisfaction of his support obliga- tions represented Gary’s share of the equity. These combined amounts represent the remaining equity in the home following the deduction of all related liens, costs, and fees from the sale price of the marital home as evidenced by the closing state- ment. Gary, instead of receiving his share of the net proceeds, had his share paid to Kirsten to satisfy his delinquent sup- port obligations. The amounts of Gary’s satisfied obligations should not have been included on the assets and liabilities spreadsheet, and the equalization calculation should be modi- fied accordingly. Before setting forth our modified calculation of the marital estate, we note that our modification assumes the net pro- ceeds of $14,954.71 from the sale of the marital home were distributed entirely to Kirsten. As noted previously, the record is unclear whether those funds were distributed to Kirsten or whether they are still in escrow. If the latter, those funds should be released entirely to Kirsten.  - 219 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports KELLY v. KELLY Cite as 29 Neb. App. 198 Using the asset and liability values set forth on exhibit 11, as now modified to reflect each party’s share of the net proceeds from the sale of the home, we have calculated the property equalization as follows: Kirsten Gary Net house sale proceeds $14,954.71 $14,885.23 (Gary’s share used to pay outstanding support) Other assets $   475.78 $40,304.75 Total assets $15,430.49 $55,189.98 Liabilities [$13,202.01] [$36,234.19] Net marital estate $ 2,228.48 $18,955.79 Equalization due to Kirsten $ 8,364.00 [$ 8,364.00] Equalized marital estate $10,592.48 $10,591.79 Accordingly, we modify the district court’s decree to reflect that Gary’s property equalization judgment owed to Kirsten is $8,364 rather than $15,841. 5. Alimony Gary argues on appeal that the district court abused its dis- cretion in ordering him to pay $500 per month in alimony to Kirsten for 5 years. As described previously, the district court, in calculating child support, determined Gary’s monthly gross income at the time of trial to be $12,048.25 and Kirsten’s monthly gross income to be $5,000. For the majority of the 12-year marriage until July 2016, Kirsten was employed. In July 2016, Kirsten and Gary agreed that Kirsten should quit her job to stay home with the minor children, forgoing her then-current yearly sal- ary of $89,000. Thereafter, she was not employed again until March 2019. Kirsten’s expenses at the time of trial were approximately $4,543 per month; such expenses included $950 for rent, $1,084 for groceries, $300 for her car payment, $239 for vehi- cle gas, $200 for utilities, $945 for daycare for the children, and various other expenses including cell phone payments,  - 220 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports KELLY v. KELLY Cite as 29 Neb. App. 198 internet, renter’s and vehicle insurance, and clothing and enter- tainment expenses for the children. Gary neither testified as to nor provided a list of his monthly expenses. As described previously, he is obligated to pay $1,980 in child support to Kirsten as well as certain other expenses. He is also required to maintain health insurance through his employer for the benefit of the children, and his weekly payroll deduction for that insurance is $42. The district court acknowledged the 12-year duration of the parties’ marriage and the parties’ three minor children. The court also identified Kirsten’s decreased income compared to her previous employment, noting that “she is not in the same advanced position she was when her employment ended” and that “it will take her several years to obtain the same respective position.” Drawing on these facts, the court ordered Gary to pay $500 per month in alimony to Kirsten for 5 years. [11-13] In dividing property and considering alimony upon a dissolution of marriage, a court should consider four fac- tors: (1) the circumstances of the parties, (2) the duration of the marriage, (3) the history of contributions to the marriage, and (4) the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of each party. Wiedel v. Wiedel, 300 Neb. 13 , 911 N.W.2d 582 (2018). In addition, a court should consider the income and earning capacity of each party and the general equities of the situation. Id. In reviewing an ali- mony award, an appellate court does not determine whether it would have awarded the same amount of alimony as did the trial court, but whether the trial court’s award is untenable such as to deprive a party of a substantial right or just result. Id. Alimony is not a tool to equalize the parties’ income, but a disparity of income or potential income might partially jus- tify an alimony award. Anderson v. Anderson, 290 Neb. 530 , 861 N.W.2d 113 (2015). Gary argues that the evidence cannot justify an award of alimony to Kirsten, as “she has funds to pay for her[] and the  - 221 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports KELLY v. KELLY Cite as 29 Neb. App. 198 minor children[’s] . . . normal maintenance and expenses.” Brief for appellant at 26. He further asserts that an award for alimony is not warranted because “[n]o circumstances dictate that [Kirsten] economically suffered during the marriage” and Kirsten “was not left without assets or significant earning capacity.” Id. at 27. Gary also points out that his own income is “directly reduce[d]” to the extent that factoring in Kirsten’s income and the other amounts Gary is required to pay to her, “the net difference in the available earnings [is] not substan- tially different.” Id. at 27. In addition to a significant disparity between each party’s employment income, Kirsten’s present income amounts to only approximately two-thirds of her previous income before she ended her employment in July 2016 to take care of the chil- dren, and it will take a number of years for Kirsten’s level of income to reach that same level again. While she builds up her income toward its previous level, she will also be primarily responsible for raising three children. In light of the record before us regarding the parties’ indi- vidual circumstances, we cannot say the district court abused its discretion in ordering Gary to pay $500 per month in ali- mony to Kirsten for a period of 5 years. 6. Attorney Fees Gary claims the district court abused its discretion in order- ing him to pay $8,000 in attorney fees to Kirsten. According to an affidavit for attorney fees received into evidence, Kirsten’s attorney charged her at a rate of $300 per hour. Prior to the conclusion of trial, the affidavit indicates that Kirsten had incurred $16,849.09 in attorney fees and expenses. This amount did not take into consideration the fees associated with the trial. Kirsten requested that the district court order Gary to pay for a portion, if not all, of her attor- ney fees. [14] It has been held that in awarding attorney fees in a dis- solution action, a court shall consider the nature of the case,  - 222 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports KELLY v. KELLY Cite as 29 Neb. App. 198 the amount involved in the controversy, the services actually performed, the results obtained, the length of time required for preparation and presentation of the case, the novelty and difficulty of the questions raised, and the customary charges of the bar for similar services. Garza v. Garza, 288 Neb. 213 , 846 N.W.2d 626 (2014). Additionally, in dissolution cases, as a matter of custom, attorney fees and costs are awarded to prevailing parties. Moore v. Moore, 302 Neb. 588 , 924 N.W.2d 314 (2019). The award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion. See Dooling v. Dooling, 303 Neb. 494 , 930 N.W.2d 481 (2019). The district court ordered Gary to pay $8,000 toward Kirsten’s attorney fees “[d]ue to the discrepancy in income between the parties . . . .” In light of the record before us with respect to the parties’ circumstances as previously described, we cannot say the district court abused its discretion by order- ing Gary to pay attorney fees to Kirsten. VI. CONCLUSION The district court’s decree is modified to reflect the changes to the parenting plan and the property equalization judgment as discussed above. The portion of the decree ordering Gary to pay certain expenses, as discussed above, is vacated. All other aspects of the decree are affirmed. Therefore, we affirm in part as modified, and in part vacate. Affirmed in part as modified, and in part vacated.

2020-12-01 14:11:02.461242+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2020/2020-Ohio-5452.pdf

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Thomas v. McGinty, Slip Opinion No. 2020-Ohio-5452 .] 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-5452 THE STATE EX REL. THOMAS ET AL., APPELLANTS, v. MCGINTY, JUDGE, APPELLEE. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Thomas v. McGinty, Slip Opinion No. 2020-Ohio-5452 .] Prohibition—Marsy’s Law—Writ of prohibition is not appropriate remedy to challenge discovery order allowing court-supervised defense inspection of appellants’ residence, because judge did not lack subject-matter jurisdiction to issue order—Appellants had adequate remedy in ordinary course of law by way of immediate appeal under R.C. 2505.02(B)(4)— Court of appeals’ judgment granting judge’s motion to dismiss affirmed. (No. 2019-1803—Submitted July 7, 2020—Decided December 1, 2020.) APPEAL from the Court of Appeals for Cuyahoga County, No. 108633, 2019-Ohio-5129 . __________________ Per Curiam.  SUPREME COURT OF OHIO {¶ 1} Article I, Section 10a of the Ohio Constitution, a.k.a. “Marsy’s Law,” grants crime victims a right in criminal cases to obtain judicial review of discovery orders that affect their Marsy’s Law rights. Appellants, Lavon Thomas and Felicia Kelly, sought a writ of prohibition to prevent appellee, Cuyahoga County Court of Common Pleas Judge William T. McGinty, from enforcing a discovery order allowing a criminal defendant (along with her defense counsel and expert witness) to have court-supervised access to inspect appellants’ residence, which was the scene of the alleged crime. The Eighth District Court of Appeals granted Judge McGinty’s motion to dismiss appellants’ prohibition action. {¶ 2} Although crime victims have a right under the Ohio Constitution to judicial review of discovery orders affecting their Marsy’s Law rights, a writ of prohibition is not the correct mechanism to challenge Judge McGinty’s order. We therefore affirm the Eighth District’s judgment. I. Facts and Procedural Background {¶ 3} Kaylynn Counts allegedly assaulted Kelly and Thomas in Thomas’s home in November 2018. Counts is awaiting trial for attempted murder and felonious assault before Judge McGinty in the Cuyahoga County Court of Common Pleas. A. Judge McGinty’s Discovery Order {¶ 4} On April 1, 2019, Counts filed a “Motion for Criminal Rule 16 Entry Upon Land for Inspection and Photograph,” requesting an order allowing her to inspect and photograph Thomas’s home, where appellants reside. Counts’s counsel wanted access to the home to aid in “forensically recreating the incident” for the defense’s case. The state opposed the motion, arguing that the trial court lacked authority to order access by a criminal defendant to a victim’s home under Crim.R. 16. {¶ 5} Judge McGinty granted Counts’s motion. He issued an order allowing Counts and the defense team to inspect Thomas’s home when appellants 2  January Term, 2020 and the prosecution are not inside it, supervised by a sheriff’s deputy and the court’s bailiff. The court ordered as follows: The parties communicate to provide 3 available days with a specific time to allow State to confer with homeowner. The state will indicate to defense counsel the date for the discovery. The court orders that bailiff shall be the court representative and be present at all times while the defendant, defense counsel and their experts are within the residence. At all times, the defendant, defense counsel and their expert shall be within the view of bailiff. The court orders that a sheriff’s deputy shall assist bailiff in this procedure. The victim shall not be in the residence once the discovery process commences. The court further orders that Cleveland Police Department and County Prosecutor [personnel] may be present, but may not be within the residence when the discovery is ongoing. {¶ 6} The state unsuccessfully sought leave to appeal Judge McGinty’s order under R.C. 2945.67(A). See State v. Counts, 157 Ohio St.3d 1408 , 2019- Ohio-3731, 131 N.E.3d 73 . The prosecuting attorney also filed an original action in this court, seeking a writ of prohibition to enjoin enforcement of Judge McGinty’s order. This court granted Judge McGinty’s motion to dismiss that action. State ex rel. O’Malley v. McGinty, __ Ohio St.3d __, 2020-Ohio-648 , 140 N.E.3d 733 . 3  SUPREME COURT OF OHIO B. The Eighth District Proceedings in this Case {¶ 7} While the state’s motion for leave to appeal was pending, appellants filed this action in the Eighth District, seeking a writ of prohibition to restrain Judge McGinty from enforcing his discovery order. They argued that Marsy’s Law and the Fourth Amendment’s prohibition of unreasonable searches and seizures deprived Judge McGinty of the authority to issue the order permitting Counts and the defense team to have access to appellants’ residence. {¶ 8} The Eighth District granted Judge McGinty’s motion to dismiss the prohibition action. The Eighth District held that a trial court “has broad discretion, and thus the jurisdiction, over discovery matters, such that the writ of prohibition will not lie.” 2019-Ohio-5129 , 137 N.E.3d 1278 , ¶ 26. And to the extent that Judge McGinty’s order granted discovery beyond that required by Crim.R. 16, the Eighth District found that to be within the trial court’s discretion. {¶ 9} The Eighth District further determined that appellants’ status as nonparties to State v. Counts did not undermine Judge McGinty’s discretion. The court explained that “the court of common pleas may order non-parties to assist in criminal investigations.” Id. at ¶ 27, citing State ex rel. Ohio Bell Tel. Co. v. Williams, 63 Ohio St.2d 51 , 407 N.E.2d 2 (1980). And the court found further support in Crim.R. 17, governing subpoenas issued to nonparties in criminal cases, for the general proposition that a trial court’s authority can reach third parties in discovery. Id. at ¶ 29. {¶ 10} Having concluded that Judge McGinty “has the jurisdiction” to issue the discovery order in this case as a matter of Ohio discovery law, the Eighth District next examined whether Marsy’s Law “deprives him of that power.” Id. at ¶ 30. The court held that a crime victim’s right to privacy “does not unilaterally deprive the trial court of jurisdiction” to order an inspection of a private residence that is also the crime scene. Id. at ¶ 31. Relying on cases from other jurisdictions to inform its decision, the Eighth District determined that a third party’s privacy 4  January Term, 2020 rights “must be weighed against a criminal defendant’s rights to due process, to confront witness[es], to have compulsory process to obtain evidence, and to effective assistance of counsel.” Id. at ¶ 42. The Eighth District therefore concluded that a trial court has jurisdiction to order an inspection of a crime scene, even if it is a private residence. Id. {¶ 11} As an additional ground for dismissal, the Eighth District concluded that appellants had an adequate remedy at law precluding extraordinary relief in prohibition. Specifically, the Eighth District observed that appellants could disobey Judge McGinty’s order, be found in contempt, and appeal a resulting contempt order. Relying on State ex rel. Mason v. Burnside, 117 Ohio St.3d 1 , 2007-Ohio- 6754, 881 N.E.2d 224 , the Eighth District determined that “appealing a contempt order is an adequate remedy at law that precludes a writ of prohibition.” 2019- Ohio-5129, 137 N.E.3d 1278 , at ¶ 43. {¶ 12} Appellants have timely appealed to this court as of right. They have also requested oral argument. II. Request for Oral Argument {¶ 13} In exercising our discretion to grant oral argument under S.Ct.Prac.R. 17.02(A), this court considers “whether the case involves a matter of great public importance, complex issues of law or fact, a substantial constitutional issue, or a conflict among courts of appeals.” State ex rel. Davis v. Pub. Emps. Retirement Bd., 111 Ohio St.3d 118 , 2006-Ohio-5339 , 855 N.E.2d 444 , ¶ 15. {¶ 14} Appellants’ request for oral argument is one sentence long and does not include any discussion of the above factors. But even if the existence of one or more of these factors is self-evident, oral argument is not warranted in this case. Although there is little case law interpreting the scope of a crime victim’s constitutional rights under Marsy’s Law, this case turns on familiar principles governing writs of prohibition. See State ex rel. Sponaugle v. Hein, 153 Ohio St.3d 560 , 2018-Ohio-3155 , 108 N.E.3d 1089 , ¶ 31; State ex rel. Chester Twp. v. 5  SUPREME COURT OF OHIO Grendell, 147 Ohio St.3d 366 , 2016-Ohio-1520 , 66 N.E.3d 683 , ¶ 18. We therefore deny the request for oral argument. III. Writ of Prohibition {¶ 15} This court reviews de novo a lower court’s dismissal of an extraordinary-writ action under Civ.R. 12(B)(6). State ex rel. Zander v. Judge of Summit Cty. Common Pleas Court, 156 Ohio St.3d 466 , 2019-Ohio-1704 , 129 N.E.3d 401 , ¶ 4. To be entitled to their requested writ of prohibition, appellants must establish that (1) Judge McGinty exercised or is about to exercise judicial power, (2) the exercise of that power is unauthorized by law, and (3) denying the writ would result in injury for which no other adequate remedy exists in the ordinary course of law. State ex rel. Elder v. Camplese, 144 Ohio St.3d 89 , 2015- Ohio-3628, 40 N.E.3d 1138 , ¶ 13. Although a relator need not show the lack of an adequate remedy in the ordinary course of law when the absence of jurisdiction is patent and unambiguous, State ex rel. Vanni v. McMonagle, 137 Ohio St.3d 568 , 2013-Ohio-5187 , 2 N.E.3d 243 , ¶ 6, appellants do not argue that there is a patent and unambiguous lack of jurisdiction in this case. A. Judge McGinty Acted within His Judicial Power {¶ 16} In arguing that Judge McGinty’s discovery order is unauthorized by law, appellants first rely on Crim.R. 16, which provides: Upon receipt of a written demand for discovery by the defendant * * * the prosecuting attorney shall provide copies or photographs, or permit counsel for the defendant to copy or photograph, the following items related to the particular case indictment, information, or complaint, and which are material to the preparation of a defense, or are intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or belong to 6  January Term, 2020 the defendant, within the possession of, or reasonably available to the state, subject to the provisions of this rule: *** (3) Subject to divisions (D)(4) and (E) of this rule, all laboratory or hospital reports, books, papers, documents, photographs, tangible objects, buildings, or places * * * . (Emphasis added.) Crim.R. 16(B). {¶ 17} Although Crim.R. 16(B)(3) allows a defendant to obtain access to “buildings” or “places,” the rule applies only to buildings or places “within the possession of, or reasonably available to the state.” Appellants argue that Judge McGinty’s order is “an unauthorized usurpation of judicial power” because there is no authority in Crim.R. 16 for Judge McGinty to order access to a nonparty’s private residence as part of criminal discovery. {¶ 18} Appellants further argue that Judge McGinty’s order is an unauthorized usurpation of power because he “lacks authority from case law” to order inspection of a crime victim’s property. Though the Eighth District cited cases from New Jersey, Hawaii, Florida, Virginia, Massachusetts, Vermont, North Carolina, and New York to inform its view that Ohio law gives trial courts discretion to order discovery from nonparties to a criminal case, see 2019-Ohio- 5129, 137 N.E.3d 1278 , at ¶ 32-41,1 appellants contend that decisions from Colorado, Oregon, and Minnesota are more persuasive.2 Finally, appellants argue 1. See State in Interest of A.B., 219 N.J. 542 , 99 A.3d 782 (2014); State v. Tetu, 139 Haw. 207 , 386 P.3d 844 (2016); State v. Gonsalves, 661 So.2d 1281 (Fla.App.1995); Henshaw v. Commonwealth, 19 Va.App. 338 , 451 S.E.2d 415 (1994); Commonwealth v. Matis, 446 Mass. 632 , 915 N.E.2d 212 (2006); State v. Muscari, 174 Vt. 101 , 807 A.2d 407 (2002); State v. Brown, 306 N.C. 151 , 293 S.E.2d 569 (1982); People v. Nicholas, 157 Misc.2d 947 , 599 N.Y.S.2d 779 (1993). 2. See People in Interest of E.G., 2016-CO-19, 368 P.3d 946 ; State ex rel. Beach v. Norblad, 308 Or. 429 , 781 P.2d 349 (1989); State v. Lee, 929 N.W.2d 432 (Minn.2019). 7  SUPREME COURT OF OHIO that Judge McGinty’s order violates their privacy rights under the Fourth and Tenth Amendments to the United States Constitution and under Article I, Section 10a of the Ohio Constitution. {¶ 19} Appellants’ arguments conflate the trial court’s jurisdictional power with the court’s exercise of jurisdiction. Generally, “a court will deny relief in prohibition when a respondent judge has general subject-matter jurisdiction and will deem any error by the judge to be an error in the exercise of jurisdiction.” Sponaugle, 153 Ohio St.3d 560 , 2018-Ohio-3155 , 108 N.E.3d 1089 , at ¶ 24. A common pleas court has the jurisdictional authority to enter pretrial orders regarding discovery in criminal proceedings. Crim.R. 16; see also Crim.R. 17 (governing issuance of subpoenas to nonparties in criminal cases). That authority even extends to discovery that arguably falls outside the letter of the criminal rules. See, e.g., State v. Landrum, 53 Ohio St.3d 107 , 119, 559 N.E.2d 710 (1990) (“Discovery beyond what the rules require is at the trial court’s discretion”). Put another way, Judge McGinty did not lack subject-matter jurisdiction to issue the discovery order allowing Counts and the defense team to conduct a court- supervised inspection of appellants’ residence for purposes of preparing a defense. Though appellants contend that the order exceeds the authority granted by Crim.R. 16, the common law, and the state and federal Constitutions, appellants’ objections implicate an alleged error in Judge McGinty’s exercise of jurisdiction, not in his jurisdictional power to issue discovery orders in criminal cases. {¶ 20} Our decision in Mason, 117 Ohio St.3d 1 , 2007-Ohio-6754 , 881 N.E.2d 224 , is instructive. In that case, a prosecutor sought a writ of prohibition to prevent a common pleas court judge from enforcing a pretrial discovery order in a criminal case, arguing that the judge “patently and unambiguously lacked jurisdiction to issue” the order. Id. at ¶ 10. Even though the respondent judge herself acknowledged that she had ordered discovery beyond that required by Crim.R. 16, id. at ¶ 4, this court denied the writ, noting the “unquestioned” principle 8  January Term, 2020 that courts have broad discretion over discovery matters, id. at ¶ 11. Because of the discretionary authority vested in the common pleas courts, “ ‘an extraordinary writ will not issue to control [the trial court’s] judicial discretion, even if that discretion is abused.’ ” Id., quoting Berthelot v. Dezso, 86 Ohio St.3d 257 , 259, 714 N.E.2d 888 (1999). So even if Judge McGinty abused his discretion in ordering an inspection of appellants’ residence, a writ of prohibition does not lie to enjoin enforcement of his order. Id. at ¶ 11-12; see also State ex rel. Lighttiser v. Spahr, 18 Ohio St.3d 234 , 480 N.E.2d 779 (1985) (prohibition did not lie to prevent trial court from enforcing discovery order against prosecutor, even though court had ordered disclosure of witness statements beyond those required by Crim.R. 16). {¶ 21} Appellants contend that this case is on different footing: whereas Mason (and other cases like it) involved a discovery order directed at the prosecutor, Judge McGinty in this case ordered a third party to provide discovery. Recently, in State ex rel. S.L. v. Judge, Hamilton Cty. Mun. Court, 1st Dist. Hamilton No. C-190248, 2020-Ohio-584 , which also involved a trial-court order allowing a criminal defendant to access the alleged victim’s home (also the crime scene) for purposes of preparing a defense, the First District Court of Appeals relied on this distinction to reject the Eighth District’s analysis in this case and to grant the alleged victim’s requested writ of prohibition. Id. at ¶ 14-20. We reject appellants’ argument for two reasons. {¶ 22} First, it is unclear in this case whether appellants are correct in their premise that Judge McGinty’s order is directed at them as opposed to the state. A close reading of the order shows that Judge McGinty ordered that “[t]he parties” (i.e., the state and Counts) communicate and provide three available days for the inspection “to allow State to confer with [the] homeowner.” Judge McGinty further ordered that the state then indicate to defense counsel the date chosen by appellants and described the parameters of the inspection. Thus, Judge McGinty’s order contemplated that appellants would provide access, but it arguably did not order 9  SUPREME COURT OF OHIO appellants to do so.3 See State ex rel. Beach v. Norblad, 308 Or. 429 , 431, 781 P.2d 349 (1989) (granting writ of mandamus compelling trial court to vacate order allowing defendant to have access to victim’s home; trial court’s order expressly stated that victim’s widow “shall make available and grant access to the defense attorneys”). {¶ 23} Second, we disapprove of the First District’s grant of a writ of prohibition in S.L. and decline to apply that court’s reasoning to this case. Even accepting the premise that Judge McGinty affirmatively ordered appellants to give Counts and the defense team access to appellants’ residence, a writ of prohibition remains an inappropriate vehicle for a nonparty to a criminal proceeding to challenge a discovery order. {¶ 24} In Ohio Bell, 63 Ohio St.2d 51 , 407 N.E.2d 2 , the trial court in a criminal case ordered a nonparty, the Ohio Bell Telephone Company, to allow installation of a pen register by the police and to supply all the necessary facilities, technical assistance, and information to aid the police in recording an Ohio Bell subscriber’s outgoing calls. Ohio Bell filed an action for a writ of prohibition to prevent the trial court from enforcing the order. Among other things, Ohio Bell argued that the trial court “lacked the subject-matter jurisdiction” to order it to allow installation of the pen register and to provide facilities and assistance to law enforcement. Id. at 53. This court denied the writ, holding that the order was issued in connection with a criminal offense that was within the court’s original subject- matter jurisdiction under R.C. 2931.03. Id. at 53. 3. Judge McGinty does not dispute appellants’ underlying premise that his discovery order required them to make their residence available for inspection by Counts. But in arguing that his order is authorized by Crim.R. 16, Judge McGinty notes that the prosecution had proposed—as an alternative to Counts’s requested inspection—that the state could gain access to appellants’ residence and provide the information requested by Counts. Thus, Judge McGinty suggests that he ordered the inspection within the letter of Crim.R. 16, based on his understanding that appellants’ residence was “reasonably available to the state” within the meaning of Crim.R. 16(B). 10  January Term, 2020 {¶ 25} We also rejected Ohio Bell’s argument that the trial court lacked personal jurisdiction to issue a discovery order to a nonparty in the criminal proceeding. Id. at 55-56. The “inherent authority” of the Ohio courts of common pleas allowed the court to issue its order, which was “in the nature of a warrant.” Id. at 56. Accordingly, there was no unauthorized usurpation of judicial authority that would support the issuance of a writ of prohibition. Id. at 57; see also State ex rel. Herdman v. Watson, 83 Ohio St.3d 537 , 700 N.E.2d 1270 (1998) (prohibition did not lie when relator, a nonparty to a civil case, alleged that court’s discovery orders violated Fifth Amendment, attorney-client, and physician-patient privileges; trial court had jurisdiction to decide those issues). {¶ 26} Prohibition is an extraordinary writ, and this court does not grant it routinely or easily. Fradette v. Gold, 157 Ohio St.3d 13 , 2019-Ohio-1959 , 131 N.E.3d 12 , ¶ 5. We have explained that with few exceptions, “a writ of prohibition ‘tests and determines “solely and only” the subject matter jurisdiction’ of the lower court.” State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70 , 73, 701 N.E.2d 1002 (1998), quoting State ex rel. Eaton Corp. v. Lancaster, 40 Ohio St.3d 404 , 409, 534 N.E.2d 46 (1988), quoting State ex rel. Staton v. Franklin Cty. Common Pleas Court, 5 Ohio St.2d 17 , 21, 213 N.E.2d 164 (1965). In this case, appellants’ arguments that Judge McGinty exceeded his judicial authority are challenges to his exercise of jurisdiction, not to the existence of subject-matter jurisdiction. Absent some other provision that divests Judge McGinty of subject-matter jurisdiction to issue the discovery order, a writ of prohibition is not appropriate. State ex rel. Novak, L.L.P. v. Ambrose, 156 Ohio St.3d 425 , 2019-Ohio-1329 , 128 N.E.3d 209 , ¶ 13. B. Impact of Marsy’s Law {¶ 27} Appellants argue that Marsy’s Law should inform our resolution of this case and allow them to obtain a writ of prohibition as the proper remedy. Article I, Section 10a of the Ohio Constitution states: 11  SUPREME COURT OF OHIO (A) To secure for victims justice and due process throughout the criminal and juvenile justice systems, a victim shall have the following rights, which shall be protected in a manner no less vigorous than the rights afforded to the accused: *** (6) except as authorized by section 10 of Article I of this constitution, to refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused; *** (B) The victim, the attorney for the government upon request of the victim, or the victim’s other lawful representative, in any proceeding involving the criminal offense or delinquent act against the victim or in which the victim’s rights are implicated, may assert the rights enumerated in this section and any other right afforded to the victim by law. If the relief sought is denied, the victim or the victim’s lawful representative may petition the court of appeals for the applicable district, which shall promptly consider and decide the petition. {¶ 28} Importantly for purposes of a writ-of-prohibition analysis, the provision of Marsy’s Law that applies to this case does not purport to divest a trial court of the jurisdictional power to order a crime victim to respond to an accused’s discovery request. Even though Section 10a(A)(6) grants to a crime victim the right to refuse the discovery request of an accused, it applies “except as authorized by section 10 of Article I of this constitution,” which sets forth the state constitutional rights of an accused. Thus, a victim’s rights under Section 10a(A)(6) are not 12  January Term, 2020 absolute. Section 10a(A)(6) contemplates trial courts making decisions about whether a victim’s rights under Marsy’s Law apply, with the victim having a right to review of the trial court’s decision in the court of appeals. Therefore, Marsy’s Law does not divest trial courts of jurisdiction to issue discovery orders that affect a crime victim’s rights under Marsy’s Law. {¶ 29} Rather than argue that Marsy’s Law somehow divests a trial court of subject-matter jurisdiction, appellants argue that their right under Section 10a(B) to file a petition in a court of appeals must be interpreted as allowing them to obtain a writ of prohibition. Because Judge McGinty’s order implicates their Marsy’s Law right “to refuse * * * [a] discovery request made by the accused,” appellants argue that they have a right under Section 10a(B) to “petition the court of appeals” for extraordinary relief. They further argue that the writ of prohibition was “the best election of the options available to protect and enforce their rights.” {¶ 30} Section 10a(B)’s grant of a right to “petition the court of appeals” does not, however, mean that a writ of prohibition is the proper remedy. And although appellants make a number of arguments about why Judge McGinty erred in issuing the discovery order, they do not explain why a writ of prohibition should lie when, as here, the trial court has subject-matter jurisdiction over the underlying case. They ask for what amounts to a carve-out in our writ-of-prohibition jurisprudence that would allow the writ to issue in any case in which a trial court has permitted an accused to obtain discovery from a crime victim. {¶ 31} Amicus curiae National Crime Victim Law Institute (“NCVLI”) contends that a writ of prohibition is appropriate under Section 10a(B) because this court “has repeatedly stated that a prohibition action is a proper vehicle to challenge the unauthorized orders” when the relator “is a nonparty” to the underlying case in which the orders were issued.4 Two of the three cases cited by NCVLI are cases in 4. In general, amici curiae are not parties to an action and may not interject issues and claims not raised by the parties. Wellington v. Mahoning Cty. Bd. of Elections, 117 Ohio St.3d 143 , 2008- 13  SUPREME COURT OF OHIO which this court granted writs of prohibition in favor of media companies. See State ex rel. News Herald v. Ottawa Cty. Court of Common Pleas, Juvenile Div., 77 Ohio St.3d 40 , 671 N.E.2d 5 (1996); State ex rel. Vindicator Printing Co. v. Wolff, 132 Ohio St.3d 481 , 2012-Ohio-3328 , 974 N.E.2d 89 . But neither of those cases supports NCVLI’s broad proposition. {¶ 32} News Herald involved a challenge to a court’s gag order prohibiting the media from reporting on court proceedings that were open to the public. We observed that “[t]here is a long line of cases holding that an action for a writ of prohibition is the proper vehicle to challenge an order of a trial court which orders closure of court proceedings” and that prohibition is “the only remedy available to nonparties who wish to challenge an order which restricts the rights of free speech and press of such nonparties.” (Emphasis sic.) News Herald at 43. Indeed, it has long been settled that a writ of prohibition is the proper remedy to address courtroom restrictions that are alleged to violate the freedom of the press. See, e.g., State ex rel. Dayton Newspapers, Inc. v. Phillips, 46 Ohio St.2d 457 , 351 N.E.2d 127 (1976), paragraph one of the syllabus; State ex rel. Beacon Journal Publishing Co. v. Kainrad, 46 Ohio St.2d 349 , 355, 348 N.E.2d 695 (1976); In re T.R., 52 Ohio St.3d 6 , 556 N.E.2d 439 (1990), paragraph one of the syllabus. {¶ 33} But these decisions can be reconciled with traditional writ-of- prohibition concepts. The lesson of the media cases is that trial courts have no jurisdictional power to close their courtrooms or restrict reporting of proceedings unless they follow proper procedures for doing so. Indeed, in both Beacon Journal and Dayton Newspapers, we stated that a writ of prohibition would lie “on authority of” State ex rel. N. Ohio Tel. Co. v. Winter, 23 Ohio St.2d 6 , 260 N.E.2d 827 (1970), a case in which this court granted a writ of prohibition because a lower court lacked Ohio-554, 882 N.E.2d 420 , ¶ 53. In this case, however, we will address NCVLI’s argument on this point because it relates to an issue raised by appellants, namely whether a writ of prohibition is a proper remedy. 14  January Term, 2020 subject-matter jurisdiction. Beacon Journal at 355; Dayton Newspapers at 458. The media writ-of-prohibition cases therefore do not provide support for granting a writ of prohibition when the lower court has subject-matter jurisdiction. {¶ 34} Vindicator Printing Co. is an even less secure anchor for NCVLI’s broad proposition to allow a writ of prohibition to issue even when subject-matter jurisdiction exists. In that case, we granted a writ of mandamus to compel a judge to release records that he had ordered to be sealed in a criminal case. As a corollary to the writ of mandamus, we also granted a writ of prohibition ordering the judge to vacate his decisions sealing records “and to prohibit the judge from presumptively sealing any records” in the criminal case. 132 Ohio St.3d 481 , 2012- Ohio-3328, 974 N.E.2d 89 , at ¶ 38-39. Without discussion of the requirements for issuance of a writ of prohibition, we concluded that prohibition was appropriate “[b]ased on the previous discussion concerning [the] relators’ mandamus claim.” Id. at ¶ 39. Therefore, Vindicator Printing Co. does not provide a solid basis for deciding that a writ of prohibition is the proper remedy in this case. {¶ 35} Finally, NCVLI relies on State ex rel. Jackman v. Cuyahoga Cty. Court of Common Pleas, 9 Ohio St.2d 159 , 224 N.E.2d 906 (1967), to support the notion that a writ of prohibition may lie even when the respondent judge or court has subject-matter jurisdiction over the underlying matter. In that case, two criminal defendants applied to the common pleas court for a commission to depose several witnesses under R.C. 2945.50. The relators, nonparties to the criminal proceeding, sought a writ of prohibition to enjoin the trial court from entering an order authorizing the defense to take the relators’ pretrial discovery depositions. Id. at 159. The court of appeals issued the writ, but this court reversed, thereby paving the way for the depositions to proceed. {¶ 36} We held that R.C. 2945.50 was a valid exercise of legislative authority, giving trial courts the jurisdictional authority to allow pretrial depositions in criminal cases. Id. at 168. Before doing so, however, we noted that prohibition 15  SUPREME COURT OF OHIO was the proper remedial avenue for the relators to pursue because the action sought “to prevent an alleged usurpation of judicial power.” Id. at 160. But the “usurpation of judicial power” terminology referred to a challenge to the jurisdictional power of the trial court to issue the commissions. See id.; see also Staton, 5 Ohio St.2d at 21, 22, 213 N.E.2d 164 (noting that prohibition “tests and determines solely and only the jurisdiction of the inferior tribunal” and using the term “usurpation of judicial power” to refer to the exercise of jurisdiction not provided by law); State ex rel. Smith v. Court of Common Pleas, Probate Div., 70 Ohio St.2d 213 , 216, 436 N.E.2d 1005 (1982), and fn. 3, quoting State ex rel. Adams v. Gusweiler, 30 Ohio St.2d 326 , 329, 285 N.E.2d 22 (1972) (explaining that phrase “unauthorized usurpation of judicial power” refers to a court’s being “ ‘without jurisdiction whatsoever to act’ ”). Accordingly, we treated the relators’ challenge in Jackman as a challenge to the jurisdictional power of the trial court. And because Jackman involved a challenge to the court’s jurisdictional power, it does not support the issuance of a writ of prohibition in this case, which presents no question as to Judge McGinty’s jurisdictional power. {¶ 37} For the foregoing reasons, neither appellants nor NCVLI provides a sound basis for authorizing a writ of prohibition as the remedy to vindicate appellants’ rights under Marsy’s Law in this case. C. Adequate Remedy in the Ordinary Course of Law {¶ 38} The Eighth District also dismissed appellants’ prohibition action because it determined that they had an adequate remedy at law by disobeying Judge McGinty’s order and then appealing any resulting contempt order against them. 2019-Ohio-5129 , 137 N.E.3d 1278 , at ¶ 43. While acknowledging that the remedy “seems harsh” as applied to a crime victim, id., the Eighth District relied on our decision in Mason, in which we determined that the prosecutor had an adequate remedy at law “by appeal to challenge any contempt order,” 117 Ohio St.3d 1 , 2007-Ohio-6754 , 881 N.E.2d 224 , at ¶ 15. 16  January Term, 2020 {¶ 39} We do not agree with the Eighth District’s rationale in this respect. Marsy’s Law expressly provides that a crime victim “may petition the court of appeals for the applicable district” when a trial court’s ruling implicates the victim’s rights. Article I, Section 10a(B), Ohio Constitution. Thus, Section 10a(B) specifically authorizes a victim to seek relief in the court of appeals. The provision does not contemplate making the victim disobey a court order and waiting for a contempt sanction before vindicating his rights under Marsy’s Law. {¶ 40} The foregoing analysis begs the question of what Article I, Section 10a(B) means in providing that a victim “may petition” the court of appeals when a trial court has denied one of the rights enumerated in Section 10a(A). Though the term “petition” is undefined in Section 10a(B), the ordinary meaning of the term is simply a “formal written request presented to a court,” Black’s Law Dictionary 1384 (11th Ed.2019). {¶ 41} When applied to the jurisdiction of a court of appeals, the term “petition” is also associated typically with extraordinary-writ actions invoking the court of appeals’ original jurisdiction. See R.C. 2725.04 (“Application for the writ of habeas corpus shall be by petition * * *”); R.C. 2731.04 (“Application for the writ of mandamus must be by petition * * *”); R.C. 2733.08 (an action in quo warranto for usurpation of office is brought by “petition”); see also State v. Hughes, 2019-Ohio-1000 , 134 N.E.3d 710 , ¶ 28 (8th Dist.) (lead opinion) (expressing the view that “petition” in Section 10a(B) means that a crime victim may invoke a court of appeals’ original jurisdiction, possibly in mandamus). But the term “petition” could also include the appellate jurisdiction of a court of appeals. See, e.g., Jones v. First Natl. Bank of Bellaire, 123 Ohio St. 642 , 176 N.E. 567 (1931), syllabus (referring to appellate review in court of appeals being pursuant to “a petition in error”); Hughes at ¶ 44 (Sheehan, J., concurring in judgment only) (opining that Section 10a(B) can reasonably be construed as granting a victim right to appeal). 17  SUPREME COURT OF OHIO Thus, the undefined term “petition” in Section 10a(B) is broad enough to encompass an original action or appellate review. {¶ 42} We need not determine what “petition” means in the context of all the Marsy’s Law rights under Section 10a(A) that a crime victim may seek to protect under Section 10a(B). In this case, which involves a discovery order that implicates Marsy’s Law rights under Section 10a(A)(6), we conclude that appellants had a right to “petition” the court of appeals by taking an immediate appeal under R.C. 2505.02(B)(4). {¶ 43} Generally, before amendments to R.C. 2505.02, discovery orders were not immediately appealable. Walters v. Enrichment Ctr. of Wishing Well, Inc., 78 Ohio St.3d 118 , 120-121, 676 N.E.2d 890 (1997). But under current law, certain discovery orders may be final and appealable if they meet the requirements of R.C. 2505.02(B)(4), which provides: An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following: *** (4) An order that grants or denies a provisional remedy and to which both of the following apply: (a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy. (b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action. 18  January Term, 2020 {¶ 44} A provisional remedy is “a proceeding ancillary to an action, including, but not limited to, * * * discovery of privileged matter.” R.C. 2505.02(A)(3). As discussed above, it is at least arguable that Judge McGinty’s order does not compel appellants to make their residence available for inspection. But if we assume that it does, the order is a provisional remedy as defined by R.C. 2505.02(A)(3). {¶ 45} As appellants acknowledge, Judge McGinty’s order does not implicate the discovery of records that are protected by a statutory or common-law privilege. But Article I, Section 10a(A)(6) of the Ohio Constitution is akin to a privilege. Much like other privileges in the law, Section 10a(A)(6) grants to a victim a special legal right not to disclose information under certain circumstances. See Black’s Law Dictionary at 1449 (defining “privilege” as a “special legal right, exemption, or immunity granted to a person or class of persons; an exception to a duty”). Under Section 10a(A)(6), a crime victim has a constitutional privilege to refuse a discovery request made by the accused, albeit a qualified privilege subject to a trial court’s determination that Article I, Section 10 of the Ohio Constitution overrides the victim’s privilege and authorizes the discovery. We therefore conclude that Judge McGinty’s order is a provisional remedy within the meaning of R.C. 2505.02(A)(3) because it grants discovery that is subject to appellants’ constitutional privilege to refuse such discovery under Article I, Section 10a(A)(6). {¶ 46} Having determined that Judge McGinty’s order grants a provisional remedy, it then follows that it is a final, appealable order under R.C. 2505.02(B)(4). First, the order both determines the action with respect to the provisional remedy and prevents a judgment in appellants’ favor with respect to the provisional remedy. See R.C. 2505.02(B)(4)(a). “ ‘Any order compelling the production of privileged or protected materials certainly satisfies R.C. 2505.02(B)(4)(a) because it would be impossible to later obtain a judgment denying the motion to compel disclosure if the party has already disclosed the materials.’ ” In re Grand Jury Proceeding of 19  SUPREME COURT OF OHIO Doe, 150 Ohio St.3d 398 , 2016-Ohio-8001 , 82 N.E.3d 1115 , ¶ 21, quoting Burnham v. Cleveland Clinic, 151 Ohio St.3d 356 , 2016-Ohio-8000 , 89 N.E.3d 536 , ¶ 30 (lead opinion). Similarly, here, once Counts and the defense team have conducted the inspection granted by Judge McGinty, it would no longer be possible for appellants to obtain a judgment preventing the inspection of their residence. See id. {¶ 47} Judge McGinty’s order also satisfies R.C. 2505.02(B)(4)(b), which requires a showing that appellants “would not be afforded a meaningful or effective remedy by an appeal following final judgment,” State v. Muncie, 91 Ohio St.3d 440 , 446, 746 N.E.2d 1092 (2001). In the context of an order to disclose materials protected by the attorney-client privilege, there is “the loss of a right that cannot be rectified by a later appeal.” In re Grand Jury Proceeding of Doe at ¶ 22. A similar situation arises when a crime victim is ordered to provide discovery despite the protections of Article I, Section 10a(A)(6). {¶ 48} The matter in dispute is whether Counts and the defense team may have access to appellants’ residence for purposes of preparing a defense, notwithstanding appellants’ qualified right under Marsy’s Law to refuse such a request. The damage to appellants is the accused’s mere access to their residence. An appeal after final judgment would not rectify the harm done by a loss of appellants’ right to refuse the accused’s discovery request. See State v. Hendon, 2017-Ohio-352 , 83 N.E.3d 282 , ¶ 10-11 (9th Dist.) (pre-Marsy’s Law case holding that orders requiring a crime victim to produce medical records were final, appealable orders under R.C. 2505.02(B)(4)). The accused’s having access to appellants’ residence is an example of the proverbial bell that cannot be unrung. See Muncie at 451. {¶ 49} For these reasons, Judge McGinty’s order is a final, appealable order under R.C. 2505.02(B)(4), and appellants therefore had an adequate remedy in the 20  January Term, 2020 ordinary course of law that precludes relief in prohibition. The Eighth District was therefore correct to dismiss appellants’ complaint. IV. Conclusion {¶ 50} The right to “petition” a court of appeals under Article I, Section 10a(B) of the Ohio Constitution is not a license to allow a writ of prohibition when prohibition does not lie under our settled standards governing the writ. Because Judge McGinty did not lack subject-matter jurisdiction to issue his discovery order, a writ of prohibition is not the appropriate remedy to challenge it. Moreover, extraordinary relief in prohibition is barred because appellants had an adequate remedy in the ordinary course of law by way of an immediate appeal under R.C. 2505.02(B)(4). We therefore affirm the judgment of the Eighth District. Judgment affirmed. O’CONNOR, C.J., and DONNELLY and STEWART, JJ., concur. FISCHER, J., concurs in judgment only. KENNEDY, J., dissents, with an opinion joined by FRENCH and DEWINE, JJ. _________________ KENNEDY, J., dissenting. {¶ 51} Because Marsy’s Law, Article I, Section 10a of the Ohio Constitution, unequivocally grants a victim of crime the right to “petition” the court of appeals to enforce his or her right to refuse a discovery request, the complaint filed by appellants, Lavon Thomas and Felicia Kelly, states a claim for relief to prevent appellee, Cuyahoga County Court of Common Pleas Judge William T. McGinty, from enforcing his order granting the defendant’s discovery request to inspect their home in a criminal case. Marsy’s Law is expressly self-executing and supersedes all conflicting state law, and the fact that Thomas and Kelly styled the complaint as seeking a writ of prohibition is not fatal to their claim for relief, because they specifically asserted their right under Marsy’s Law to refuse the discovery request. 21  SUPREME COURT OF OHIO {¶ 52} Further, the lead opinion’s analysis confuses the law by suggesting that a writ of prohibition is limited to preventing a lower court from exceeding its subject-matter jurisdiction; it also will prevent judicial acts that violate constitutional rights when the relator lacks an adequate remedy by way of appeal. And contrary to the lead opinion’s analysis, an interlocutory appeal of a discovery order is not available when the subjects of the order are not parties to the underlying case, and it therefore cannot be an adequate remedy in the ordinary course of the law precluding relief. {¶ 53} Judge McGinty has failed to demonstrate beyond doubt that Thomas and Kelly can prove no set of facts that would entitle them to relief, and I therefore dissent and would reverse the judgment of the court of appeals dismissing their complaint and would remand the case to that court for consideration of the merits of the complaint. Facts and Procedural History {¶ 54} Because this matter comes to us on appeal of the dismissal of Thomas and Kelly’s complaint, we must presume the truth of the allegations in the complaint and draw all reasonable inferences in their favor. State ex rel. Hemsley v. Unruh, 128 Ohio St.3d 307 , 2011-Ohio-226 , 943 N.E.2d 1014 , ¶ 8. Dismissal for the failure to state a claim upon which relief can be granted is appropriate only if it appears beyond doubt that they can prove no set of facts entitling them to the requested relief. Id. {¶ 55} According to the allegations of the complaint, Thomas and Kelly are the victims of crimes committed by Kaylynn Counts, who has been indicted on multiple charges, including counts of attempted murder and felonious assault. {¶ 56} In that criminal proceeding, Counts requested a court order allowing the defense to enter, inspect, and photograph Thomas and Kelly’s home as the scene of the crimes. Judge McGinty granted the discovery request over the prosecutor’s objection. According to the discovery order, which the complaint refers to, Judge 22  January Term, 2020 McGinty directed the prosecutor to arrange the inspection and ordered a bailiff and a sheriff’s deputy to oversee it. Thomas and Kelly are not allowed to be present when the defense enters their home. The order does not list Thomas and Kelly as parties, nor does it indicate that they were present at the hearing on the discovery request. {¶ 57} Thomas and Kelly filed a complaint for a writ of prohibition in the Eighth District Court of Appeals seeking to prevent Judge McGinty from enforcing the discovery order. However, they specifically asserted their right as victims of crime under Marsy’s Law to refuse the discovery request and “to ‘petition’ the court of appeals for the applicable district * * * when trial courts deny victims their constitutionally guaranteed rights. Ohio Constitution, Article I, Section 10a(B).” {¶ 58} The Eighth District granted Judge McGinty’s motion to dismiss for failure to state a claim, holding that he had subject-matter jurisdiction to issue the discovery order and that neither Article I, Section 10a of the Ohio Constitution nor the Fourth Amendment to the United States Constitution deprived him of “the jurisdiction, the authority, to order an inspection of a crime scene, even if it is a private residence,” 2019-Ohio-5129 , 137 N.E.3d 1278 , ¶ 42. Law and Analysis Marsy’s Law {¶ 59} The people of Ohio adopted Marsy’s Law, Article I, Section 10a of the Ohio Constitution, “[t]o secure for victims justice and due process throughout the criminal and juvenile justice systems.” Ohio Constitution, Article I, Section 10a(A). Section 10a(A)(1) grants a victim of a crime the right “to be treated with fairness and respect for the victim’s safety, dignity and privacy,” and Section 10a(A)(6) provides that “except as authorized by section 10 of Article I of this constitution” (pertaining to the rights of the accused), a victim has the right “to refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused.” 23  SUPREME COURT OF OHIO {¶ 60} Article I, Section 10a(B) guarantees a victim of a crime the right to assert these rights in the criminal proceeding and to seek review if those rights are denied: The victim, the attorney for the government upon request of the victim, or the victim’s other lawful representative, in any proceeding involving the criminal offense or delinquent act against the victim or in which the victim’s rights are implicated, may assert the rights enumerated in this section and any other right afforded to the victim by law. If the relief sought is denied, the victim or the victim’s lawful representative may petition the court of appeals for the applicable district, which shall promptly consider and decide the petition. (Emphasis added.) Lastly, Section 10a(E) states that “[a]ll provisions of this section shall be self-executing and severable, and shall supersede all conflicting state laws.” {¶ 61} In this case, the prosecutor objected to Counts’s discovery request on behalf of Thomas and Kelly, and they sought relief from the discovery order in the court of appeals. Although they framed their action as one seeking a writ of prohibition, they expressly cited and relied on the right to petition the court of appeals afforded by Article I, Section 10a(B) as vesting the Eighth District with jurisdiction over their claims and as supporting their request for relief. Because Thomas and Kelly unambiguously asserted rights under Section 10a, Judge McGinty was given sufficient notice to defend against their claims. Further, the prayer for relief sought “such further and other relief as the Court deems just and appropriate.” 24  January Term, 2020 {¶ 62} And even if styling the complaint as seeking a writ of prohibition was improper, we have previously used our plenary power in reviewing original actions to recast the complaint to seek the appropriate relief. E.g., State ex rel. Dispatch Printing Co. v. Louden, 91 Ohio St.3d 61 , 66, 741 N.E.2d 517 (2001). {¶ 63} Accordingly, Thomas and Kelly have plainly asserted their right to petition the court of appeals to protect their right to refuse Counts’s discovery request under Article I, Section 10a. Interlocutory Appeal {¶ 64} The lead opinion states that the word “petition” as used in Article I, Section 10a(B) of the Ohio Constitution can mean either an original action in the court of appeals or an appeal of a discovery order to the court of appeals. Although the lead opinion says that “[w]e need not determine what ‘petition’ means in the context of all the Marsy’s Law rights,” in a subtle sleight of hand, it “conclude[s] that appellants had a right to ‘petition’ the court of appeals by taking an immediate appeal under R.C. 2505.02(B)(4).” Lead opinion at ¶ 42. {¶ 65} In adopting Marsy’s Law, the people of Ohio did not condition the right to petition the court of appeals on satisfying the requirements of R.C. 2505.02(B)(4). The people made the rights created by Article I, Section 10a, including the right to petition the court of appeals to vindicate those rights, self- executing. Section 10a expressly “supersede[s] all conflicting state laws” and leaves no room for the General Assembly to restrict the constitutional remedy by which victims of crime assert their rights. Therefore, a crime victim’s right to petition the court of appeals is not conditioned on the existence of a “final order” as defined by R.C. 2505.02(B). Section 10a(B) says that a crime victim may petition the court of appeals for relief, and Thomas and Kelly did that here. Whether the General Assembly, going forward, may enact a specific statutory procedure to permit victims of crime to vindicate their rights under Marsy’s Law is not a question currently in need of an answer. 25  SUPREME COURT OF OHIO {¶ 66} The lead opinion’s claim that Thomas and Kelly had a right to an appeal pursuant to R.C. 2505.02(B)(4) is erroneous. They are not parties to the criminal case and lack standing to appeal. See State ex rel. Toledo Blade Co. v. Henry Cty. Court of Common Pleas, 125 Ohio St.3d 149 , 2010-Ohio-1533 , 926 N.E.2d 634 , ¶ 19 (explaining that prohibition is the only remedy for nonparties to challenge a gag order and rejecting the argument that intervention and interlocutory appeal were adequate remedies); In re T.R., 52 Ohio St.3d 6 , 11, 556 N.E.2d 439 (1990) (newspaper that was not a party to the case may not appeal trial court’s gag order). An interlocutory appeal is not a possibility for Thomas and Kelly. {¶ 67} Here, Thomas and Kelly filed a petition asserting their state constitutional right to refuse to comply with Judge McGinty’s discovery order. The court of appeals should have denied the motion to dismiss and given them the chance to prove, with evidence, that Article I, Section 10a guarantees to them the right to keep their alleged assailant from ejecting them from their home to inspect it. Prohibition {¶ 68} The lead opinion, however, reviews this case solely as a prohibition action, and its analysis introduces additional errors that demand a response. {¶ 69} Initially, I agree with the lead opinion that Judge McGinty possessed subject-matter jurisdiction to issue discovery orders in the underlying prosecution. Subject-matter jurisdiction refers to the constitutional or statutory power of a court to adjudicate a particular class or type of case. State v. Harper, ___ Ohio St.3d ___, 2020-Ohio-2913 , ___ N.E.3d ___, ¶ 23, citing Pratts v. Hurley, 102 Ohio St.3d 81 , 2004-Ohio-1980 , 806 N.E.2d 992 , ¶ 11-12, 34. “ ‘A court’s subject-matter jurisdiction is determined without regard to the rights of the individual parties involved in a particular case.’ ” Id., quoting Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75 , 2014-Ohio-4275 , 21 N.E.3d 1040 , ¶ 19. “Rather, the focus is on whether the forum itself is competent to hear the controversy.” Id., citing 18A Wright, 26  January Term, 2020 Miller & Cooper, Federal Practice and Procedure, Section 4428, at 6 (3d Ed.2017) (“Jurisdictional analysis should be confined to the rules that actually allocate judicial authority among different courts”). {¶ 70} “Article IV, Section 4(B) of the Ohio Constitution grants exclusive authority to the General Assembly to allocate certain subject matters to the exclusive original jurisdiction of specified divisions of the courts of common pleas.” State v. Aalim, 150 Ohio St.3d 489 , 2017-Ohio-2956 , 83 N.E.3d 883 , ¶ 2. And pursuant to R.C. 2931.03, “a common pleas court has subject-matter jurisdiction over felony cases.” Smith v. Sheldon, 157 Ohio St.3d 1 , 2019-Ohio- 1677, 131 N.E.3d 1 , ¶ 8. Accordingly, Judge McGinty possessed subject-matter jurisdiction when he issued the discovery order. {¶ 71} That does not end the analysis. Prohibition will lie when the inferior court’s exercise of judicial power is unauthorized by law and would result in an injury for which no other adequate remedy exists in the ordinary course of the law. State ex rel. Elder v. Camplese, 144 Ohio St.3d 89 , 2015-Ohio-3628 , 40 N.E.3d 1138 , ¶ 13. {¶ 72} Our prohibition cases involving gag orders issued in criminal cases and challenged by members of the press are informative. Those were cases in which the trial court possessed subject-matter jurisdiction over the criminal case yet we nonetheless issued writs of prohibition “to prevent courts from enforcing gag orders that unconstitutionally impair the press’[s] right to gather news,” State ex rel. Cincinnati Post v. Hamilton Cty. Court of Common Pleas, 59 Ohio St.3d 103 , 107, 570 N.E.2d 1101 (1991). We allowed members of the media to challenge orders impinging on their constitutional rights to a free press and open courts by seeking a writ of prohibition, recognizing that they had no adequate remedy in the ordinary course of the law, because they were not parties to the case and lacked the ability to appeal. E.g., Toledo Blade, 125 Ohio St.3d 149 , 2010-Ohio-1533 , 926 N.E.2d 634 , at ¶ 19; T.R., 52 Ohio St.3d at 11, 556 N.E.2d 439 . 27  SUPREME COURT OF OHIO {¶ 73} According to the lead opinion, “these decisions can be reconciled with traditional writ-of-prohibition concepts. The lesson of the media cases is that trial courts have no jurisdictional power to close their courtrooms or restrict reporting of proceedings unless they follow proper procedures for doing so.” Lead opinion at ¶ 33. This language propagates the confusion we have so often sought to clarify between the existence of subject-matter jurisdiction (which involves only whether the court has the constitutional and statutory power to hear that specific type of case) and the exercise of that subject-matter jurisdiction, which “once conferred, * * * remains,” Pratts, 102 Ohio St.3d 81 , 2004-Ohio-1980 , 806 N.E.2d 992 , at ¶ 34; see generally Kuchta, 141 Ohio St.3d 75 , 2014-Ohio-4275 , 21 N.E.3d 1040 , at ¶ 18 (“The often unspecified use of this polysemic word [‘jurisdiction’] can lead to confusion and has repeatedly required clarification as to which type of ‘jurisdiction’ is applicable in various legal analyses”). {¶ 74} In the gag-order cases, we reviewed the trial court’s exercise of jurisdiction, considering whether the court conducted a hearing and made specific findings on the record showing that the accused’s right to a fair trial would be jeopardized by publicity and that there were no reasonable alternatives to a gag order that would adequately protect the accused’s right. See Toledo Blade at ¶ 28- 30. We have never held, as the lead opinion now suggests, that a trial court has subject-matter jurisdiction to enter a gag order only if it exercises that jurisdiction properly. {¶ 75} It is not necessary to decide whether a writ of prohibition would have been available to Thomas and Kelly. Marsy’s Law has provided them with the right to petition the court of appeals to vindicate their right to refuse the discovery request, and they exercised that right. That should determine the outcome of this case. 28  January Term, 2020 Conclusion {¶ 76} For these reasons, Judge McGinty failed in his burden to demonstrate beyond a doubt that Thomas and Kelly can prove no set of facts that would entitle them to relief. I therefore dissent and would reverse the judgment of the court of appeals dismissing their complaint and would remand the case to that court for consideration of the merits of the complaint. FRENCH and DEWINE, JJ., concur in the foregoing opinion. _________________ Ohio Crime Victim Justice Center and Elizabeth A. Well, for appellants. Law Office of Timothy Farrell Sweeney and Timothy F. Sweeney, for appellee. Rittgers & Rittgers and Konrad Kircher, urging reversal for amicus curiae National Crime Victim Law Institute. Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Katherine Mullin and Anthony T. Miranda, Assistant Prosecuting Attorneys, urging reversal for amicus curiae Cuyahoga County Prosecutor’s Office. Mark A. Stanton, Cuyahoga County Public Defender, and Erika B. Cunliffe and John T. Martin, Assistant Public Defenders, urging affirmance for amicus curiae Cuyahoga County Public Defender. _________________ 29

2020-12-01 14:11:04.070305+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2020/2020-Ohio-5450.pdf

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In re Determination of Existence of Significantly Excessive Earnings for 2017 Under the Elec. Sec. Plan of Ohio Edison Co., Slip Opinion No. 2020-Ohio-5450 .] 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-5450 IN RE DETERMINATION OF EXISTENCE OF SIGNIFICANTLY EXCESSIVE EARNINGS FOR 2017 UNDER ELECTRIC SECURITY PLAN OF OHIO EDISON COMPANY; OFFICE OF OHIO CONSUMERS’ COUNSEL, APPELLANT; PUBLIC UTILITIES COMMISSION, APPELLEE; OHIO EDISON COMPANY, INTERVENING APPELLEE. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In re Determination of Existence of Significantly Excessive Earnings for 2017 Under the Elec. Sec. Plan of Ohio Edison Co., Slip Opinion No. 2020-Ohio-5450 .] Public Utilities—R.C. 4928.143(F)—Public Utilities Commission should not have excluded the revenue from Ohio Edison Company’s Distribution Modernization Rider in its annual earnings review of Ohio Edison’s electric security plan—Cause remanded to the commission. (No. 2019-0961—Submitted May 12, 2020—Decided December 1, 2020.) APPEAL from the Public Utilities Commission, No. 18-0857-EL-UNC. ____________________  SUPREME COURT OF OHIO STEWART, J. {¶ 1} R.C. 4928.141(A) requires electric-distribution utilities to make a “standard service offer” of generation service to consumers in one of two ways: through a “market rate offer” (under R.C. 4928.142) or an “electric security plan” (under R.C. 4928.143). Electric-distribution utilities that opt to provide service under an electric security plan must undergo an annual earnings review by appellee, the Public Utilities Commission. R.C. 4928.143(F). If the commission finds that the plan resulted in “significantly excessive earnings” compared to similar companies, the utility must return the excess to its customers. Id. {¶ 2} In this case, the commission found that intervening appellee Ohio Edison Company’s 2017 earnings were not significantly excessive. {¶ 3} Appellant, the Office of the Ohio Consumers’ Counsel (“OCC”), appeals from the orders making that finding, challenging the commission’s decision to exclude revenue resulting from Ohio Edison’s Distribution Modernization Rider (“DMR”) from the earnings test. We conclude that the commission’s decision to exclude revenue resulting from the DMR, which was approved as part of the company’s electric security plan, was not reasonable. Accordingly, we reverse the commission’s orders and remand the cause for further proceedings. I. FACTS AND PROCEDURAL BACKGROUND {¶ 4} On March 31, 2016, the commission approved the fourth electric security plan (“ESP”) of the FirstEnergy companies, which includes Ohio Edison. The plan runs for eight years, ending on May 31, 2024. In re Application of Ohio Edison Co., Pub. Util. Comm. No. 14-1297-EL-SSO, 2016 Ohio PUC LEXIS 270 at *33 (Mar. 31, 2016) (“ESP Case”). As part of the ESP, the commission authorized the DMR, which was intended to serve as an incentive for the companies to modernize their distribution systems. Pub. Util. Comm. No. 14-1297-EL-SSO, 2016 Ohio PUC LEXIS 920, Fifth Entry on Rehearing, ¶ 185-213 (Oct. 12, 2016) (“ESP Fifth Entry on Rehearing”). 2  January Term, 2020 {¶ 5} R.C. 4928.143(F)1 requires the commission to consider annually whether the electric security plan resulted in “significantly excessive earnings” compared to companies facing “comparable” risk: With regard to the provisions that are included in an electric security plan under this section, the commission shall consider, following the end of each annual period of the plan, if any such adjustments resulted in excessive earnings as measured by whether the earned return on common equity of the electric distribution utility is significantly in excess of the return on common equity that was earned during the same period by publicly traded companies, including utilities, that face comparable business and financial risk, with such adjustments for capital structure as may be appropriate. Consideration also shall be given to the capital requirements of future committed investments in this state. The utility bears the “burden of proof for demonstrating that significantly excessive earnings did not occur,” and if the commission finds that “such adjustments”— referring to provisions of the electric security plan—“in the aggregate, did result in significantly excessive earnings, it shall require the electric distribution utility to return to consumers the amount of the excess by prospective adjustments.” Id. {¶ 6} On May 15, 2018, FirstEnergy filed an application with the commission to conduct the significantly-excessive-earnings test (“SEET”) for each of its companies for 2017 (the “SEET case”). FirstEnergy and the commission’s staff argued that DMR revenue should be excluded from the SEET calculation for 2017, consistent with the commission’s determination of this issue in the ESP case. 1. We apply the version of R.C. 4928.143(F) as amended by 2011 Am.Sub.H.B. No. 364 because that is the version that was in effect when the SEET application was filed on May 15, 2018. 3  SUPREME COURT OF OHIO OCC challenged the exclusion of Ohio Edison’s DMR revenue, arguing that R.C. 4928.143(F) does not permit the commission to exclude revenue collected directly from charges approved under the plan. {¶ 7} The commission held that revenue that Ohio Edison had collected under the DMR in 2017 should be excluded from the SEET review because that was the methodology approved in the ESP case. Pub. Util. Comm. No. 18-0857- EL-UNC, 2019 Ohio PUC LEXIS 330, at ¶ 26 (Mar. 20, 2019) (“SEET Order”), citing ESP Fifth Entry on Rehearing, 2016 Ohio PUC LEXIS 920, at ¶ 212 and Pub. Util. Comm. No. 14-1297-EL-SSO, 2017 OHIO PUC LEXIS 719, Eighth Entry on Rehearing, ¶ 81 (Aug. 16, 2017) (“ESP Eighth Entry on Rehearing”). In the ESP proceedings, the commission found that “DMR revenues should be excluded from SEET calculations,” at least during the initial three-year period of the DMR, because including that revenue “would introduce an unnecessary element of risk to [Ohio Edison] and undermine the purpose of providing credit support for the Compan[y].” ESP Fifth Entry on Rehearing at ¶ 212. The commission affirmed this ruling in the ESP Eighth Entry on Rehearing and also found that the arguments against excluding the DMR revenue from the 2017 SEET were premature. Id. at ¶ 81. {¶ 8} OCC filed an application for rehearing in the SEET case, arguing that the commission violated R.C. 4928.143(F) when it excluded DMR revenue from the 2017 SEET. The commission denied rehearing on May 15, 2019. {¶ 9} One month later, on June 19, 2019, we held that the DMR was unlawful and ordered it removed from the ESP. In re Application of Ohio Edison Co., 157 Ohio St.3d 73 , 2019-Ohio-2401 , 131 N.E.3d 906 . We declined to rule on whether the commission erred in excluding DMR revenue from the SEET, finding that the issue could be raised in the annual SEET review. Id. at ¶ 33-34. {¶ 10} On July 15, 2019, OCC filed this appeal, challenging the commission’s decision to exclude the DMR revenue from the SEET. 4  January Term, 2020 II. STANDARD OF REVIEW {¶ 11} “R.C. 4903.13 provides that a [Public Utilities Commission] order shall be reversed, vacated, or modified by this court only when, upon consideration of the record, the court finds the order to be unlawful or unreasonable.” Constellation NewEnergy, Inc. v. Pub. Util. Comm., 104 Ohio St.3d 530 , 2004- Ohio-6767, 820 N.E.2d 885 , ¶ 50. We will not reverse or modify a commission decision as to questions of fact when the record contains sufficient probative evidence to show that the commission’s decision is not manifestly against the weight of the evidence and is not so clearly unsupported by the record as to show misapprehension, mistake, or willful disregard of duty. Monongahela Power Co. v. Pub. Util. Comm., 104 Ohio St.3d 571 , 2004-Ohio-6896 , 820 N.E.2d 921 , ¶ 29. The appellant bears the burden of demonstrating that the commission’s decision is against the manifest weight of the evidence or is clearly unsupported by the record. Id. {¶ 12} Although this court has “complete and independent power of review as to all questions of law” in appeals from the Public Utilities Commission, Ohio Edison Co. v. Pub. Util. Comm., 78 Ohio St.3d 466 , 469, 678 N.E.2d 922 (1997), we may rely on the expertise of a state agency in interpreting a law when “highly specialized issues” are involved and when “agency expertise would, therefore, be of assistance in discerning the presumed intent of our General Assembly,” Consumers’ Counsel v. Pub. Util. Comm., 58 Ohio St.2d 108 , 110, 388 N.E.2d 1370 (1979). III. ANALYSIS {¶ 13} OCC argues that the commission acted unreasonably and unlawfully when it excluded the DMR revenue from the annual SEET review. According to OCC, R.C. 4928.143(F) does not support the commission’s decision to remove that revenue from the calculation of Ohio Edison’s earned return on common equity. 5  SUPREME COURT OF OHIO OCC also asserts that the commission’s decision is contrary to this court’s prior interpretation of that provision. A. This court will defer to the commission’s interpretation of R.C. 4928.143(F), but only if it is reasonable {¶ 14} While we generally review questions of law de novo, we will defer to the commission’s interpretation of a statute when “there exists disparate competence between the respective tribunals in dealing with highly specialized issues.” Consumers’ Counsel at 110. “One area in which this court has consistently deferred to the expertise of the commission is in determining rate-of-return matters.” In re Comm. Rev. of Capacity Charges of Ohio Power Co., 147 Ohio St.3d 59 , 2016-Ohio-1607 , 60 N.E.3d 1221 , ¶ 41, citing Ohio Edison Co. v. Pub. Util. Comm., 63 Ohio St.3d 555 , 561, 589 N.E.2d 1292 (1992), fn. 3. “Limited judicial review of a rate of return determination is sound” because “ ‘cost of capital analyses * * * are fraught with judgments and assumptions.’ ” (Ellipsis sic.) Consumers’ Counsel v. Pub. Util. Comm., 64 Ohio St.2d 71 , 79, 413 N.E.2d 799 (1980), quoting Dayton Power & Light Co., Pub. Util. Comm. No. 78-92-EL-AIR, at 26 (Mar. 9, 1979). {¶ 15} In 2012, we held that R.C. 4928.143(F) is essentially a rate-of-return statute and therefore it is appropriate to review the commission’s interpretation of R.C. 4928.143(F) deferentially. In re Application of Columbus S. Power Co., 134 Ohio St.3d 392 , 2012-Ohio-5690 , 983 N.E.2d 276 , ¶ 36-38. Nevertheless, we defer to the commission’s interpretation of R.C. 4928.143(F) only if it is reasonable. Id. at ¶ 38. {¶ 16} In this case, the commission’s interpretation of R.C. 4928.143(F)— that it allows exclusion of DMR revenue from the SEET—is not reasonable. 1. The commission’s orders cite no language in R.C. 4928.143(F) that justifies excluding DMR revenue from the SEET {¶ 17} Whether an ESP “resulted in excessive earnings” must be 6  January Term, 2020 measured by whether the earned return on common equity of the electric distribution utility is significantly in excess of the return on common equity that was earned during the same period by publicly traded companies, including utilities, that face comparable business and financial risk, with such adjustments for capital structure as may be appropriate. R.C. 4928.143(F). {¶ 18} In the SEET proceeding, the commission ruled that excluding DMR revenue from the annual earnings review was appropriate because that was the methodology that the commission had approved in Ohio Edison’s fourth ESP case. The commission’s analysis of this issue is contained in the ESP Fifth Entry on Rehearing: [T]he Commission finds that Rider DMR2 revenues should be excluded from SEET calculations. Including the revenue in SEET would introduce an unnecessary element of risk to the Companies and undermine the purpose of providing credit support for the Companies. However, we will reconsider whether to exclude Rider DMR revenues from SEET when we rule upon any possible extension of Rider DMR.3 2. “Rider DMR” stands for “Rider Distribution Modernization Rider.” We use “DMR” to avoid redundancy; however, both terms refer to the same rider. 3. The commission approved the DMR for only three years, but the FirstEnergy companies had the option of filing an application to extend the rider for two more years. ESP Fifth Entry on Rehearing at ¶ 210. 7  SUPREME COURT OF OHIO Id., 2016 Ohio PUC LEXIS 920, at ¶ 212. {¶ 19} The commission affirmed this ruling in the ESP Eighth Entry on Rehearing but added little to its analysis: The commission affirms our ruling that the revenue collected under Rider DMR should be excluded from SEET for the initial three-year period. At the time we issued the Fifth Entry on Rehearing, we found the arguments made by the Companies to be persuasive and continue to do so today, to the extent such arguments are relating to the initial three-year period of Rider DMR. Intervenors have raised no new arguments for our consideration, and we fully considered those arguments in the Fifth Entry on Rehearing. *** Moreover, intervenors’ arguments raise hypothetical concerns in any event and, thus, are also premature. Accordingly, we find that rehearing on these assignments of error should be denied. Id., 2017 OHIO PUC LEXIS 719, at ¶ 81. {¶ 20} The commission is a creature of statute and may act only under the authority conferred on it by the General Assembly. Tongren v. Pub. Util. Comm., 85 Ohio St.3d 87 , 88, 706 N.E.2d 1255 (1999). The commission’s justification for excluding the DMR was that including its revenue “would introduce an unnecessary element of risk to the Companies and undermine the [DMR’s] purpose of providing credit support.” ESP Fifth Entry on Rehearing at ¶ 212. But the commission failed to even cite R.C. 4928.143(F), let alone explain how that provision allows the commission to exclude DMR revenue on this basis. We recently held that the 8  January Term, 2020 commission’s failure to cite specific statutory authority for its actions is grounds for reversal. In re Application of Ohio Edison Co., 158 Ohio St.3d 27 , 2019-Ohio- 4196, 139 N.E.3d 875 , ¶ 15-17 (“we decline to assume that the General Assembly implicitly granted authority to the commission * * * without any clear indication in the statutory language to that effect”). {¶ 21} The commission’s finding that Ohio Edison would face “an unnecessary element of risk” if DMR revenue were included, ESP Fifth Entry on Rehearing, 2016 Ohio PUC LEXIS 920, at ¶ 212, does not provide the necessary support. In making that finding, the commission appears to have accepted Ohio Edison’s claim that including the revenue in the SEET calculation would defeat the DMR’s purpose of supporting future grid-modernization projects by increasing the risk to the company of having to refund that revenue. See id. at ¶ 181 (setting forth Ohio Edison’s argument and citing an exhibit submitted by Ohio Edison). But electric utilities face the risk of a refund in every SEET case. See R.C. 4928.143(F) (if the commission finds that the ESP resulted in excessive earnings, “it shall require the electric distribution utility to return to customers the amount of the excess”). The commission’s removal of revenue from the SEET without statutory authorization and without an appropriate rationale completely undermines the purpose of the test. 2. The commission’s orders are contrary to precedent {¶ 22} OCC also argues that the commission’s decision is contrary to our interpretation of R.C. 4928.143(F) in Columbus S. Power, 134 Ohio St.3d 392 , 2012-Ohio-5690 , 983 N.E.2d 276 . We agree. {¶ 23} In Columbus S. Power, we considered the commission’s ability to exclude certain revenue from the utility’s earnings before determining whether the utility’s earnings were significantly excessive. The commission had excluded from the utility’s earnings certain revenue from off-system sales—wholesale sales by the 9  SUPREME COURT OF OHIO utility to nonretail customers. Id. at ¶ 7-8, 35. We analyzed the following language contained in the first sentence of R.C. 4928.143(F): With regard to the provisions that are included in an electric security plan under this section, the commission shall consider, following the end of each annual period of the plan, if any such adjustments resulted in excessive earnings * * *. {¶ 24} We explained that this language requires the commission to determine whether “such adjustments”—referring to provisions of the ESP— resulted in excessive earnings. Columbus S. Power at ¶ 40. And we concluded that, by implication, earnings not caused by the ESP may be excluded from consideration. We therefore held that the commission’s interpretation of R.C. 4928.143(F)—that it allows exclusion of revenue not resulting from the ESP—was reasonable. Columbus S. Power at ¶ 39-40. {¶ 25} OCC maintains that the DMR is a provision of the ESP and constitutes an “adjustment” under R.C. 4928.143(F). OCC therefore contends that under Columbus S. Power, the commission was required to consider whether the DMR—as an adjustment to the ESP—resulted in excessive earnings. {¶ 26} OCC is correct. To be sure, we did not directly decide in Columbus S. Power whether earnings caused by the ESP may be excluded from consideration before determining whether the utility’s earnings were significantly excessive. But we did say that R.C. 4928.143(F) requires the commission to find whether “adjustments” to (i.e., provisions of) the electric security plan “resulted in excessive earnings.” Columbus S. Power at ¶ 40. Moreover, the commission has defined “adjustments” in the first sentence of R.C. 4928.143(F) as “includ[ing] any change in rates when compared to the rates in the electric utility’s preceding rate plan.” In 10  January Term, 2020 re Investigation into the Development of the Significantly Excessive Earnings Test, Pub. Util. Comm. No. 09-786-EL-UNC, at 15 (June 30, 2010) (“SEET Test Case”). {¶ 27} There is no question that the DMR constituted a change in rates when compared to the rates in the electric utility’s preceding rate plan. The commission’s approval of the DMR authorized the FirstEnergy companies to collect an additional $168 million to $204 million in revenue in each of the first three years of the companies’ fourth ESP. See In re Application of Ohio Edison, 157 Ohio St.3d 73 , 2019-Ohio-2401 , 131 N.E.3d 906 , at ¶ 1, 6. Therefore, the DMR constitutes an “adjustment” under R.C. 4928.143(F) and the commission was required to include the DMR when determining whether the plan resulted in excessive earnings. {¶ 28} Accordingly, we hold that the commission’s action in this case— removing DMR revenue from the calculation used to determine whether the ESP resulted in excessive earnings—violated R.C. 4928.143(F). 3. The court lacks jurisdiction over the alleged violation of R.C. 4903.09 {¶ 29} The opinion concurring in judgment only in part and dissenting in part (hereafter, “concurring and dissenting opinion” or “dissent”) concurs in the judgment reversing the commission’s order but dissents from our determination that the commission must include the DMR revenue in the SEET calculation on remand. The dissent is based on the view that the commission violated R.C. 4903.09, which requires the commission’s order to include the factual basis and reasoning that the commission relied on in reaching its decision. Tongren, 85 Ohio St.3d at 89-90, 706 N.E.2d 1255 . According to the dissent, the commission violated this provision when it “failed to explain the statutory and evidentiary bases for its decision to exclude the [DMR] revenue from the [SEET] required by R.C. 4928.143(F).” Concurring and dissenting opinion at ¶ 88. As a result, the dissent contends, “[i]t is premature to reach the merits of whether R.C. 4928.143(F) permitted the commission to exclude the [DMR] revenue from the [SEET]” and to order that the commission include the revenue in a new SEET proceeding on 11  SUPREME COURT OF OHIO remand. Id. at ¶ 114. Instead, the dissent opines that precedent requires us to “return this matter to the commission to explain and support its decision” to exclude the DMR from the SEET. Id. at ¶ 88. {¶ 30} The dissent overlooks the fact that OCC did not allege a violation of R.C. 4903.09 in an application for rehearing before the commission. And that fact is crucial because it means we lack jurisdiction over this issue on appeal. See R.C. 4903.10; In re Fuel Adjustment Clauses for Columbus S. Power Co. & Ohio Power Co., 140 Ohio St.3d 352 , 2014-Ohio-3764 , 18 N.E.3d 1157 , ¶ 71; see also In re Application of Am. Transm. Sys., Inc., 125 Ohio St.3d 333 , 2010-Ohio-1841 , 928 N.E.2d 427 , ¶ 27 fn. 1; In re Application of Columbus S. Power Co., 128 Ohio St.3d 512 , 2011-Ohio-1788 , 947 N.E.2d 655 , ¶ 71. {¶ 31} Moreover, in concluding that the commission violated R.C. 4903.09, the dissent states that “the commission’s finding that Ohio Edison would face ‘an unnecessary element of risk’ if [DMR] revenue were included in the earnings test lacks any citation to record evidence and is therefore an insufficient rationale.” (Emphasis added.) Concurring and dissenting opinion at ¶ 96. But the commission did refer to evidence submitted by Ohio Edison in making this finding. Therefore, although the commission’s decision lacked a sufficient rationale, it is not accurate to hold that the commission’s risk finding lacked record evidence. In the end, it would be improper for us to dispose of this appeal on an alleged violation of R.C. 4903.09. B. The counterarguments {¶ 32} Ohio Edison and the commission both argue that the plain language of R.C. 4928.143(F) supports the commission’s decision to remove the DMR revenue from the SEET. They claim that the statute authorizes the commission to make appropriate “adjustments” to the electric utility’s earned return on common equity in conducting the SEET, although their claims differ on the type of adjustment the commission made when it removed the DMR revenue. As explained 12  January Term, 2020 below, because the commission’s orders do not mention this justification for the removal of the DMR revenue, we reject the counterarguments. 1. The commission’s counterarguments {¶ 33} The commission claims that it has discretion under R.C. 4928.143(F) to make certain adjustments in conducting the SEET. Under R.C. 4928.143(F), whether an electric security plan “resulted in excessive earnings” is measured by whether the earned return on common equity of the electric distribution utility is significantly in excess of the return on common equity that was earned during the same period by publicly traded companies, including utilities, that face comparable business and financial risk, with such adjustments for capital structure as may be appropriate. Consideration also shall be given to the capital requirements of future committed investments in this state. (Emphasis added.) According to the commission, in removing the DMR from the SEET, the commission merely made “an adjustment for improving the company’s capital structure appropriately to support the large commitments needed for grid modernization.” And because the adjustment to Ohio Edison’s capital structure under R.C. 4928.143(F) is a matter for the commission’s expertise, the commission asserts that we should defer to its determination. {¶ 34} The commission, however, never said it was making an adjustment for capital structure when it removed the DMR revenue. As noted, the commission cited no language in R.C. 4928.143(F) that would authorize it to remove the DMR revenue from the SEET calculation. If the commission had determined that removing this revenue was an appropriate adjustment to Ohio Edison’s capital structure under the SEET, it should have said so. 13  SUPREME COURT OF OHIO {¶ 35} Nor did Ohio Edison argue that the removal of DMR revenue was justified as an adjustment to its capital structure. In fact, in the ESP case, it specifically argued that “to the extent that the Commission determines that Rider DMR revenue should be included in the SEET calculation, the Commission would need to make appropriate adjustments to the Companies’ capital structure.” (Emphasis added.) {¶ 36} While we generally defer to the commission in matters involving its expertise, we cannot defer to a determination the commission never made. See Rich’s Dept. Stores, Inc. v. Levin, 125 Ohio St.3d 15 , 2010-Ohio-957 , 925 N.E.2d 951 , ¶ 23-24 (although we acknowledged that the Board of Tax Appeals’ “factual findings merit utmost deference when supported by the record,” we declined the taxpayer’s request that we “defer to a finding that the [Board of Tax Appeals] did not make”). For these reasons, our practice is not to uphold a commission’s discretionary decision when the commission offers a different justification on appeal than it provided in its order. Duke Energy at ¶ 23-26. We therefore reject the commission’s attempt to recast its decision. 2. Ohio Edison’s counterarguments a. The commission did not adopt Ohio Edison’s comparable-risk argument {¶ 37} Ohio Edison argues that the plain language of R.C. 4928.143(F) supports the commission’s decision to remove DMR revenue from the SEET’s calculation of the earned return on common equity. R.C. 4928.143(F) requires the commission to compare the electric utility’s return on common equity with the returns of “publicly traded companies, including utilities, that face comparable business and financial risk.” (Emphasis added.) The commission found that Ohio Edison would face an “an unnecessary element of risk” if the DMR revenue were included. ESP Fifth Entry on Rehearing, 2016 Ohio PUC LEXIS 920, at ¶ 212. According to Ohio Edison, because no other company has a mechanism like the 14  January Term, 2020 DMR, the commission found that removal of its revenue was necessary for the commission to conduct a valid comparison based on “comparable risk.” The record from the ESP case, however, does not support this argument. {¶ 38} Ohio Edison did argue in the ESP case that DMR revenue should be excluded to allow the commission to conduct a valid comparison of the earned returns on equity. But Ohio Edison’s witness never mentioned risk to the company in making the valid-comparison argument to the commission. Rather, Ohio Edison’s risk claim was made in relation to having to refund DMR revenue. The commission found this argument persuasive. However, in the end, the commission never mentioned the comparable-risk clause in R.C. 4928.143(F) as its reason for excluding the DMR revenue, so we reject this argument. b. The commission did not exclude DMR revenue based on similar exclusions in the SEET Test Case {¶ 39} Under R.C. 4928.143(F), the commission must determine the electric utility’s “earned return on common equity.” In the SEET Test Case, the commission defined “earned return” as “the electric utility’s profits after deduction of all expenses, including taxes, minority interest, and preferred dividends, paid or accumulated, and excluding any non-recurring, special, and extraordinary items.” (Emphasis added.) Id., Pub. Util. Comm. No. 09-786-EL-UNC, at 18 (June 30, 2010). {¶ 40} Ohio Edison argues that the commission “relied on testimonial evidence” to properly remove DMR revenue when it calculated the earned return based on this definition. Specifically, Ohio Edison claims that the commission excluded the revenue because the DMR (1) constituted an “extraordinary item” and (2) was “associated with an[] additional liability or write-off of regulatory assets due to implementing” the fourth ESP. {¶ 41} Ohio Edison made this argument in the ESP case, but the commission did not rely on it when it excluded the DMR revenue. Even though 15  SUPREME COURT OF OHIO the commission ruled in Ohio Edison’s favor, the company continued to argue that it was proper to exclude the revenue on these additional grounds. ESP Eighth Entry on Rehearing, 2017 OHIO PUC LEXIS 719, at ¶ 78. {¶ 42} The commission resolved Ohio Edison’s argument in the ESP Eighth Entry on Rehearing, as follows: The Commission affirms our ruling that the revenue collected under Rider DMR should be excluded from SEET for the initial three-year period. At the time we issued the Fifth Entry on Rehearing, we found the arguments made by the Companies to be persuasive and continue to do so today, to the extent such arguments are relating to the initial three-year period of Rider DMR. (Emphasis added.) Id. at ¶ 81. {¶ 43} Ohio Edison cites this paragraph as proof that the commission adopted these additional grounds to support its decision to remove the revenue. For the following reasons, we decline to read this decision in the manner that Ohio Edison suggests. {¶ 44} First, the commission made no express or implicit finding that the DMR constituted an “extraordinary item” or an “additional liability or write-off of [a] regulatory asset[].” Although the commission found Ohio Edison’s arguments “persuasive,” the commission never identified which arguments were persuasive. And the fact remains that the commission adopted only Ohio Edison’s increased- risk argument in support of removing DMR revenue. See ESP Fifth Entry on Rehearing, 2016 Ohio PUC LEXIS 920, at ¶ 212; ESP Eighth Entry on Rehearing, 2017 OHIO PUC LEXIS 719, at ¶ 81. {¶ 45} Second, Ohio Edison ignores that its SEET application did not mention that the DMR was being excluded as an “extraordinary item.” Ohio Edison 16  January Term, 2020 likewise overlooks that the SEET application expressly stated that there were “no adjustments * * * associated with any additional liability or write-off of regulatory assets.” {¶ 46} The dissent faults the lead opinion for discarding Ohio Edison’s arguments construing R.C. 4928.143(F). As the dissent sees it, this court “must address all arguments regarding what the statute means,” even when the commission declined to address an argument that was raised below and even when a party raises an argument for the first time on appeal. Concurring and dissenting opinion at ¶ 110. {¶ 47} We have previously explained that our practice is not to uphold a commission’s decision based on a justification asserted by a party on appeal that is different from the justification the commission provided in its order. See In re Application of Duke Energy Ohio, Inc., 148 Ohio St.3d 510 , 2016-Ohio-7535 , 71 N.E.3d 997 , ¶ 23-26. Because the dissent cites no authority that undermines our adherence to that rule in this appeal, we see no need to reconsider that rule here. {¶ 48} Likewise, we are not required to consider arguments on appeal that could have been but were not raised in earlier administrative proceedings. Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark Cos., Inc., 67 Ohio St.3d 274 , 279, 617 N.E.2d 1075 (1993); Independence v. Office of the Cuyahoga Cty. Executive, 142 Ohio St.3d 125 , 2014-Ohio-4650 , 28 N.E.3d 1182 , ¶ 30. Quite simply, the failure to present an argument to the commission constitutes a waiver of that argument on appeal. Parma v. Pub. Util. Comm., 86 Ohio St.3d 144 , 148, 712 N.E.2d 724 (1999); Ohio Consumers’ Counsel v. Pub. Util. Comm., 127 Ohio St.3d 524 , 2010-Ohio-6239 , 941 N.E.2d 757 , ¶ 18. And although there may be exceptions, as a matter of basic fairness, we do not accept objections when a party has deprived the commission of an opportunity to correct the error, Parma at 148; Ohio Consumers’ Counsel at ¶ 18; In re Application of Columbus S. Power Co., 129 Ohio St.3d 271 , 2011-Ohio-2638 , 951 N.E.2d 751 , ¶ 19. 17  SUPREME COURT OF OHIO {¶ 49} Finally, the dissent contends, “[C]ontrary to the lead opinion, Ohio Edison’s arguments draw upon the plain meaning of R.C. 4928.143(F), and therefore, its arguments have merit.” Concurring and dissenting opinion at ¶ 89. According to the dissent, the DMR “affects Ohio Edison’s financial risk, its capital structure, and the capital requirements for committed investments in this state, and R.C. 4928.143(F) affords the commission discretion to adjust these components as may be appropriate.” Concurring and dissenting opinion at ¶ 113. {¶ 50} Ohio Edison, however, did not argue in this appeal that the DMR revenue should be excluded from the SEET either as an adjustment for the company’s capital structure or due to its capital requirements for future committed investments. Hence, it is improper for us to consider these arguments at this time. As for whether the DMR revenue may be excluded from the SEET based on increased business and financial risk to the utility, we note that the dissent’s argument is based on its erroneous claim that the commission found that including the DMR revenue in the SEET increased Ohio Edison’s business and financial risk. The dissent concedes that the commission made no such finding by observing that the commission’s risk finding was “presumably” referring to the company’s business and financial risk. Concurring and dissenting opinion at ¶ 111. c. Ohio Edison’s lack-of-prejudice and lack-of-jurisdiction-to-remand claims {¶ 51} Ohio Edison asserts that we should dismiss this appeal because OCC has not demonstrated prejudice stemming from the commission’s SEET order. Ohio Edison also contends that we lack jurisdiction to remand this case for a new SEET proceeding. We reject both arguments. i. OCC has demonstrated prejudice {¶ 52} We “will not reverse an order of the commission upon an assignment of error without a showing of concomitant harm or prejudice.” Ohio Commt. of Cent. Station Elec. Protection Assn. v. Pub. Util. Comm., 50 Ohio St.2d 169 , 174, 18  January Term, 2020 364 N.E.2d 3 (1977). Ohio Edison contends that OCC has not shown harm to ratepayers caused by the commission’s decision to exclude DMR revenue from the company’s return on equity. According to Ohio Edison, rather than citing evidence that establishes harm, OCC merely speculates that consumers might be entitled to a refund. {¶ 53} Contrary to Ohio Edison’s claim, OCC was not required to show that ratepayers were entitled to a refund to establish harm. R.C. 4928.143(F) protects ratepayers from having to pay significantly excessive rates to the electric utility. But ratepayers are protected only if the commission conducts a valid SEET. OCC cannot show that a refund is warranted until a new SEET proceeding is conducted, yet Ohio Edison would deny OCC that opportunity. OCC’s harm is that Ohio Edison was not required to include the DMR revenue in its earnings when it asserted that the ESP earnings were not significantly excessive. Compare Columbus S. Power, 134 Ohio St.3d 392 , 2012-Ohio-5690 , 983 N.E.2d 276 , at ¶ 46 (finding that the appellant failed to show prejudice when it neither explained nor provided evidence of which adjustments the commission should have made under the SEET). ii. This court has jurisdiction to remand this case for new SEET proceeding {¶ 54} Ohio Edison also alleges that we lack jurisdiction to remand this case to the commission for a new SEET proceeding. {¶ 55} In the SEET proceeding, the commission found that Ohio Edison’s calculation of 12.22 percent for the return on equity should be used for the 2017 SEET analysis. The commission rejected OCC’s calculation of the company’s return on equity of 17.39 percent because OCC had included the DMR revenue in this calculation. {¶ 56} In addition to determining Ohio Edison’s return on equity, the commission needed to determine an appropriate SEET threshold, which is the point 19  SUPREME COURT OF OHIO above which earnings are considered significantly excessive. The commission considered three different methodologies: one proposed by the commission’s staff that resulted in a return on equity threshold of 17.22 percent, a second proposed by Ohio Edison resulting in a threshold of 19.20 percent, and OCC’s methodology, which resulted in a proposed threshold of 14.91 percent. {¶ 57} The commission, however, did not settle on a specific SEET threshold. Instead, the commission found that the methodologies of Ohio Edison and the commission’s staff were appropriate. {¶ 58} Against this backdrop, Ohio Edison maintains that the only issue OCC preserved for appeal was a challenge to the commission’s calculation of the company’s return on equity. According to Ohio Edison, even if OCC were to prevail on its challenge to the return-on-equity calculation, OCC’s calculated return on equity of “17.39 percent is substantially below the 19.20 percent SEET threshold approved by the Commission.” Ohio Edison claims that OCC never challenged the 19.20 percent SEET threshold that was approved by the commission either on rehearing at the commission or on appeal. As a result, Ohio Edison argues, OCC waived the issue whether Ohio Edison had significantly excessive earnings for 2017 and this court lacks jurisdiction to consider the issue. {¶ 59} OCC responds that the commission never established the SEET threshold in the case below. Therefore, OCC asserts, the court has jurisdiction to remand the cause to the commission with instructions that it conduct the SEET with the DMR revenue included and establish the SEET threshold. We agree with OCC. {¶ 60} Although the commission found that the methodologies of Ohio Edison and the commission’s staff were “appropriate,” the commission did not determine a specific SEET threshold. Instead, the commission found that Ohio Edison’s earnings were not significantly excessive, because the “properly calculated” return on equity for Ohio Edison of 12.22 percent (which excluded DMR revenue) fell well below all of the recommended thresholds. Thus, while 20  January Term, 2020 Ohio Edison is correct that OCC’s calculated return on equity of 17.39 percent (which included DMR revenue) was below Ohio Edison’s proposed SEET threshold (19.20 percent), it did not fall below the proposed SEET thresholds of either the commission’s staff (17.22 percent) or OCC (14.91 percent). {¶ 61} In sum, the record does not support Ohio Edison’s claim that the commission approved a 19.20 percent SEET threshold. Therefore, we reject Ohio Edison’s claim that we lack jurisdiction to remand this case for a new SEET proceeding. d. OCC did not waive its challenge to the approved stipulation {¶ 62} Ohio Edison’s final argument is that OCC waived any challenge to the commission’s approval of the stipulation entered into by Ohio Edison, the commission’s staff, and Ohio Energy Group in the SEET proceeding. The stipulation purported to resolve all outstanding issues in the SEET proceeding and recommended that the commission find that Ohio Edison did not have significantly excessive earnings for 2017. After review, the commission modified and approved the joint stipulation. {¶ 63} Ohio Edison claims that because OCC did not argue on appeal that the stipulation did not meet the three criteria necessary for approval of a stipulation, the commission’s approval of the stipulation must stand. See Constellation NewEnergy, 104 Ohio St.3d 530 , 2004-Ohio-6767 , 820 N.E.2d 885 , at ¶ 8 (setting forth the three criteria). We disagree. {¶ 64} A stipulation presented to the commission is entitled to the force of law only if it is approved by a commission order. Consumers’ Counsel v. Pub. Util. Comm., 114 Ohio St.3d 340 , 2007-Ohio-4276 , 872 N.E.2d 269 , ¶ 16. OCC argues on appeal that the commission’s orders are unlawful and unreasonable because it removed DMR revenue in violation of R.C. 4928.143(F). OCC did not need to couch its appeal as a challenge to the commission’s application of the three-part test, because its challenge to the commission’s orders directly implicates the 21  SUPREME COURT OF OHIO commission’s approval of the stipulation. Therefore, we reject Ohio Edison’s waiver argument. IV. CONCLUSION {¶ 65} For the foregoing reasons, we reverse the orders on appeal and remand the case to the commission for further review consistent with this opinion. On remand, we instruct the commission to conduct a new SEET proceeding in which it includes the DMR revenue in the analysis, determines the SEET threshold, considers whether any adjustments under R.C. 4928.143(F) are appropriate, and makes any other determinations that are necessary to resolve this matter. Orders reversed and cause remanded. O’CONNOR, C.J., and DONNELLY, J., concur. DEWINE, J., concurs in judgment only, with an opinion. KENNEDY, J., concurs in judgment only in part and dissents in part, with an opinion joined by FRENCH, J. FISCHER, J., dissents. _________________ DEWINE, J., concurring in judgment only. {¶ 66} I agree with the majority’s holding that the Public Utilities Commission of Ohio could not exclude revenue from Ohio Edison Company’s “Distribution Modernization Rider” (“DMR”)4 in its annual earnings review of Ohio Edison’s electric security plan. The lead opinion reasons, correctly, that the statute laying out the framework by which the commission determines whether an electric security plan resulted in excessive earnings does not authorize the 4. The DMR is a “temporary, additional charge * * * separate from the basic monthly rates” that the commission allowed as part of Ohio Edison’s electric security plan in the hope that the revenue from the DMR would serve as an incentive for Ohio Edison to modernize its utility distribution system. See In re Application of Ohio Edison Co., 157 Ohio St.3d 73 , 2019-Ohio-2401 , 131 N.E.3d 906 , ¶ 1, fn. 1. 22  January Term, 2020 commission’s actions in this case. Lead opinion at ¶ 20. I cannot join the lead opinion, though, because of my concerns with the deference it gives to the commission’s interpretation of the law. {¶ 67} As a creation of statute, the commission cannot act beyond the powers given to it by the General Assembly. Discount Cellular, Inc. v. Pub. Util. Comm., 122 Ohio St.3d 360 , 2007-Ohio-53 , 859 N.E.2d 957 , ¶ 51. R.C. 4928.143(F) requires the commission to consider whether provisions in an electric security plan resulted in excessive earnings as measured by whether the earned return on common equity of the electric distribution utility is significantly in excess of the return on common equity that was earned during the same period by publicly traded companies, including utilities, that face comparable business and financial risk, with such adjustments for capital structure as may be appropriate. * * * Consideration also shall be given to the capital requirements of future committed investments in this state. {¶ 68} The statute requires the commission to perform a two-part task. First, the commission must select companies that “face comparable business and financial risk” to the utility and determine the return on equity of the utility and the comparable companies. When it comes to this determination, the statute permits only one type of adjustment—“adjustments for capital structure as may be appropriate.” Once the commission has completed this step, then it must compare the return on equity of the utility and the comparable companies and determine whether the utility’s return on equity is substantially in excess of the comparable companies. This step is less circumscribed: the statute does not define “significantly in excess,” and in making its determination, the commission is also 23  SUPREME COURT OF OHIO to give consideration to “the capital requirements of future committed investments in this state.” {¶ 69} By its plain terms, the statute does not allow for the commission’s adjustment to remove DMR revenues from the utility’s return on equity. It is not an “adjustment[] for capital structure” under any plausible understanding of the phrase. Thus, the plain text of the statute compels us to conclude that the commission lacked statutory authority for its actions. See In re Application of Ohio Edison Co., 158 Ohio St.3d 27 , 2019-Ohio-4196 , 139 N.E.3d 875 , ¶ 17 (“we decline to assume that the General Assembly implicitly granted authority to the commission * * * without any clear indication in the statutory language to that effect”). {¶ 70} That should be where the court’s analysis begins and ends. But the lead opinion takes a different path. First, the lead opinion announces that because R.C. 4928.143(F) is a rate-of-return statute, it will defer to the agency’s interpretation as long as its interpretation is reasonable. Lead opinion at ¶ 15. It then goes on to analyze whether the commission’s interpretation of the statute was reasonable. Even under this highly deferential standard, the lead opinion concludes that the commission’s interpretation was unreasonable and so ultimately reaches the right result. But I worry that the analytical path it uses in this case further muddles this court’s caselaw on administrative deference. {¶ 71} As I have written before, I am skeptical of deferring to an agency’s statutory interpretation. Such deference blurs the separation-of-powers principles that underpin our constitutional order. See, e.g., State ex rel. McCann v. Delaware Cty Bd. of Elections, 155 Ohio St.3d 14 , 2018-Ohio-3342 , 118 N.E.3d 224 , ¶ 30- 31 (DeWine, J., concurring in judgment only). Deference to an agency’s interpretation of a statute forces the judiciary to abandon the exercise of its independent judgment in favor of an agency’s construction. Michigan v. Environmental Protection Agency, 576 U.S. 743 , 761, 135 S.Ct. 2699 , 192 L.Ed.2d 24  January Term, 2020 674 (2015) (Thomas, J. concurring), citing Natl. Cable & Telecommunications Assn. v. Brand X Internet Servs., 545 U.S. 967 , 983, 125 S.Ct. 2688 , 162 L.Ed.2d 820 (2005). But even without a wholesale reexamination of our deference doctrine, there are problems with the lead opinion’s analysis that should not go unmentioned. {¶ 72} I have two fundamental concerns. First, the lead opinion’s formulation of the deference doctrine requires that we defer to an agency’s reasonable interpretation of a statute, even if we have not first concluded that the statute is ambiguous. Second, in analyzing the statute at issue, the lead opinion fails to distinguish between matters over which the legislature has delegated authority to the commission and matters of purely legal interpretation. No Deference Is Owed to an Agency’s Interpretation of an Unambiguous Statute {¶ 73} The most troubling aspect of the lead opinion is its assertion that we should defer to an agency’s interpretation of a statute if it is reasonable. See lead opinion at ¶ 15 (“we defer to the commission’s interpretation of R.C. 4928.143(F) only if it is reasonable”). Even under familiar deference doctrines this formulation misses an important first step. Before a court even considers deferring to an agency’s interpretation, it must first find that the statute is genuinely ambiguous. {¶ 74} The Ohio Revised Code makes this requirement explicit. R.C. 1.49 sets forth six items a court “may consider among other matters” “[i]f a statute is ambiguous.” These include things like “the object sought to be attained,” the circumstances of enactment, the common law, and “[t]he administrative construction of the statute.” Thus, by the plain provisions of the Ohio Revised Code, a finding of ambiguity must come before a court is even permitted to consider an agency’s interpretation. And even then, we need not defer to that construction, we need only “consider” it. {¶ 75} The requirement that a finding of ambiguity must come before a court affords deference has some parallels to the practice in the federal system. 25  SUPREME COURT OF OHIO Under the familiar (though oft-criticized) standard first articulated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 , 843, 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984), a court will sometimes defer to an agency’s interpretation of an ambiguous statute. As I’ve noted before, I’m no fan of the Chevron doctrine. See State ex rel. McCann, 155 Ohio St.3d 14 , 2018-Ohio-3342 , 118 N.E.3d 224 , at ¶ 30-34. But it is worth pointing out that even the Chevron doctrine, as it is currently understood, is far less deferential to agency decision- making than the formulation employed by the lead opinion today. {¶ 76} For Chevron to apply, a court must find that Congress has delegated an agency the authority to promulgate rules with the force of law and “the agency interpretation claiming deference was promulgated in the exercise of that authority.” United States v. Mead Corp., 533 U.S. 218 , 226-227, 121 S.Ct 2164, 150 L.Ed.2d 292 (2001). If a court finds that Congress has delegated such authority to the agency, it must then engage in a two-step process. {¶ 77} First, the court must determine whether the statute is ambiguous. “[D]eference is not due unless a ‘court, employing traditional tools of statutory construction,’ is left with an unresolved ambiguity.” Epic Sys. Corp. v. Lewis, ___ U.S. ___, 138 S.Ct. 1612 , 1630, 200 L.Ed.2d 889 (2018), quoting Chevron at 843, fn. 9. Only when the statute has been found to be genuinely ambiguous does the court move to the second step of the process and determine whether the agency’s interpretation is reasonable. Chevron at 843. {¶ 78} The lead opinion’s confusion today is somewhat understandable. This court’s precedent is far from consistent when it comes to the requirement that a statute be found ambiguous before consideration may be given to an agency’s construction. At times, we have followed the Chevron model and first asked whether the statute was ambiguous. See, e.g., Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals, 141 Ohio St.3d 318 , 2014-Ohio-4809 , 23 N.E.3d 1161 , ¶ 29; Lang v. Dir., Ohio Dept. of Job & Family Servs., 134 Ohio St.3d 296 , 2012- 26  January Term, 2020 Ohio-5366, 982 N.E.2d 636 , ¶ 14-15 (concluding that because the federal statute at issue was ambiguous, the court would defer to the Ohio agency’s interpretation of the statute). More often, though, we have simply said that we will defer to an agency’s interpretation as long as it is reasonable. See, e.g., State ex rel. Lucas Cty. Republican Party Executive Commt. v. Brunner, 125 Ohio St.3d 427 , 2010-Ohio- 1873, 928 N.E.2d 1072 , ¶ 23; In re Columbus S. Power Co., 138 Ohio St.3d 448 , 2014-Ohio-462 , 8 N.E.3d 863 , ¶ 29. {¶ 79} The lead opinion continues on this wrong path, eschewing the limitations imposed by R.C. 1.49 (and on federal courts by Chevron). It never asks if the legislature delegated to the commission the claimed-authority to interpret R.C. 4928.143(F). And it never asks whether the statute is truly ambiguous. It asks only whether the commission’s interpretation is reasonable. {¶ 80} “The judicial power of the state is vested in a supreme court, courts of appeals, courts of common pleas and divisions thereof, and such other courts inferior to the supreme court as may from time to time be established by law.” Ohio Constitution, Article IV, Section 1. Central to the judicial power is the duty to “say what the law is.” Marbury v. Madison, 5 U.S. 137 , 177, 2 L.Ed. 60 (1803). When we defer to an agency’s interpretation of a statute—asking only whether it is reasonable—we abdicate our constitutional responsibility. At the very least, we ought to ensure that a statute is truly ambiguous, before we even consider giving weight to an agency’s interpretation. There Is No Reason to Defer to the Commission’s Legal Construction of “Rate of Return” Statutes {¶ 81} The lead opinion’s willingness to skip the ambiguity step is not the only problem with its analysis. Also troubling is its assumption that deference is owed to any agency determination of rate-of-return matters, without distinguishing between the agency’s construction of statutory terms and its performance of a task delegated to it by the legislature. 27  SUPREME COURT OF OHIO {¶ 82} The lead opinion makes the blanket statement that “ ‘One area in which this court has consistently deferred to the expertise of the commission is in determining rate-of-return matters.’ ” Lead opinion at ¶ 14, quoting In re Comm. Rev. of Capacity Charges of Ohio Power Co., 147 Ohio St.3d 59 , 2016-Ohio-1607 , 60 N.E.3d 1221 , ¶ 41. It then says that because R.C. 4928.143(F) is essentially a rate-of-return statute, it will defer to the commission’s interpretation as long as it is reasonable. {¶ 83} The problem, though, is that in making this broad statement, and in its subsequent analysis, the lead opinion fails to distinguish between matters over which the legislature has delegated authority to the commission (such as whether a given rate of return is appropriate) and general matters involving the interpretation of plain statutory terms. As to the former, deference may be appropriate; but it is not for the latter. {¶ 84} To see why, let’s return to the statute. Under R.C. 4928.143(F), “the commission shall consider” whether provisions in an electric security plan resulted in returns that were “significantly in excess of the return on common equity” of comparable companies. The statute does not define “significantly in excess” and thus could be read to delegate authority to the commission to make this determination. Hence, if the question was whether a 5, 10, or 15 percent return differential was “significantly in excess,” it might be appropriate to defer to the commission’s judgment. {¶ 85} But that is not the question here. The question is whether the DMR revenue could be excluded from the excessive-earnings calculation. To answer that question, one need only determine whether the removal of DMR revenues is an “adjustment[] for capital structure,” R.C. 4928.143(F). The relevant considerations are the nature of DMR revenues and the meaning of “capital structure.” The question is simply one of legal interpretation of commonly used terms, and it is one that should be made by a court without deference to the commission. See In re 28  January Term, 2020 Application of Ohio Edison Co., 157 Ohio St.3d 73 , 2019-Ohio-2401 , 131 N.E.3d 906 , at ¶ 62 (DeWine, J., concurring in judgment only); In re Application of Black Fork Wind Energy, L.L.C., 156 Ohio St.3d 181 , 2018-Ohio-5206 , 124 N.E.3d 787 , ¶ 43 (Kennedy, J., concurring). It Is Time to Revisit Our Caselaw on Administrative Deference {¶ 86} The lead opinion is simply more evidence that we need to revisit our caselaw on administrative deference. This court’s caselaw is far from consistent on the topic, is at odds with basic notions of separation of powers, and fails even to comply with our statutory charge in R.C. 1.49. In recent years, at least seven state supreme courts have revisited and rejected their doctrines of administrative deference. See In re Complaint of Rovas Against SBC Michigan, 482 Mich. 90 , 111, 754 N.W.2d 259 (2008) (declining to adopt Chevron for review of state administrative agencies’ statutory interpretation on, among others, separation-of- powers grounds); Douglas v. Ad Astra Information Sys., L.L.C., 296 Kan. 552 , 559, 293 P.3d 723 (2013) (stating that judicial deference to agency construction of statutes “has been abandoned, abrogated, disallowed, disapproved, ousted, overruled, and permanently relegated to the history books”); Hughes Gen. Contrs., Inc. v. Utah Labor Comm., 2014 UT 3 , 322 P.3d 712 , ¶ 25 (rejecting Chevron-style deference); Ellis-Hall Consultants v. Pub. Serv. Comm. of Utah, 2016 UT 34 , 379 P.3d 1270 , ¶ 28 (repudiating its decisions requiring deference to an agency’s interpretation of its own regulations); Tetra Tech EC, Inc. v. Wisconsin Dept. of Revenue, 382 Wis.2d 496 , 2018 WI 75 , 914 N.W.2d 21 , ¶ 3, 82-84, fn. 3 (ending its practice of deferring to agency conclusions of law); King v. Mississippi Military Dept., 245 So.3d 404 , 408 (Miss.2018) (abandoning the “old standard of review giving deference to agency interpretations of statutes”); Delcon Partners, L.L.C. v. Wyoming Dept. of Revenue, 2019 WY 106 , 450 P.3d 682 , ¶ 7 (stating that agency interpretations and applications of the law are not afforded any deference); Myers v. Yamato Kogyo Co., Ltd., 2020 Ark. 135 , at 5, 597 S.W.3d 613 (clarifying that 29  SUPREME COURT OF OHIO because it is the province and duty of a court to determine a statute’s meaning, agency interpretations will not be given deference). And at least three states have significantly curtailed administrative deference through legislation or constitutional amendment. Florida Constitution, Article V, Section 21; Ariz.Rev.Stat.Ann. 12- 910; Wis.Stat.Ann. 227.10. It is past time for this court to take up the matter. Conclusion {¶ 87} The lead opinion reaches the right result. But because I disagree with the deference it would accord to the commission’s interpretation of the law, I concur only in its judgment. _________________ KENNEDY, J., concurring in judgment only in part and dissenting in part. {¶ 88} Because the Public Utilities Commission, appellee, failed to explain the statutory and evidentiary bases for its decision to exclude the Distribution Modernization Rider revenue from the significantly-excessive-earnings test required by R.C. 4928.143(F), I concur in the majority’s judgment reversing the commission’s decision. But rather than make the determination whether the commission must include the rider revenue in the earnings test, I would return this matter to the commission to explain and support its decision as required by our precedent. {¶ 89} The lead opinion, however, would make that determination and discard many of Ohio Edison’s statutory-construction arguments as not properly before the court. But our duty is to say what the law enacted by the General Assembly is, and we cannot ignore the true meaning of a statute simply because a party failed to assert it below or raised a statutory-construction argument for the first time in this court. In addition, a party who is not aggrieved by the commission’s decision is not required to seek a rehearing or file a cross-appeal in order to preserve its arguments for upholding the decision. And contrary to the lead 30  January Term, 2020 opinion, Ohio Edison’s arguments draw upon the plain meaning of R.C. 4928.143(F), and therefore, its arguments have merit. {¶ 90} For the reasons that follow, I dissent from the portion of the majority’s judgment ordering the commission to conduct a new proceeding in which it includes the Distribution Modernization Rider revenue in the earnings test. The Commission Is Required to Explain Its Decisions {¶ 91} Article IV, Section 2(B)(2)(d) of the Ohio Constitution grants this court “[s]uch revisory jurisdiction of the proceedings of administrative officers or agencies as may be conferred by law.” The General Assembly conferred such appellate power on this court through its enactment of R.C. 4903.13, which provides that “[a] final order made by the public utilities commission shall be reversed, vacated, or modified by the supreme court on appeal, if, upon consideration of the record, such court is of the opinion that such order was unlawful or unreasonable.” {¶ 92} To facilitate this review, R.C. 4903.09 directs the commission to provide “findings of fact and written opinions setting forth the reasons prompting the decisions arrived at, based upon said findings of fact.” The statute “ ‘enable[s] this court to review the action of the commission without reading the voluminous records in Public Utilities Commission cases.’ ” (Brackets added.) Tongren v. Pub. Util. Comm., 85 Ohio St.3d 87 , 89, 706 N.E.2d 1255 (1999), quoting Commercial Motor Freight, Inc. v. Pub. Util. Comm., 156 Ohio St. 360 , 363, 102 N.E.2d 842 (1951). As the United States Supreme Court has remarked, it is not possible for this court “to review the law and the facts and intelligently decide that the findings of the Commission [are] supported by the evidence when the evidence * * * [is] unknown and unknowable.” Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio, 301 U.S. 292 , 303, 57 S.Ct. 724 , 81 L.Ed. 1093 (1937). {¶ 93} R.C. 4903.09 therefore requires the commission’s orders to contain specific findings of fact and conclusions of law sufficient “to enable [this] court to 31  SUPREME COURT OF OHIO make its review as to lawfulness and reasonableness.” MCI Telecommunications Corp. v. Pub. Util. Comm., 32 Ohio St.3d 306 , 312, 513 N.E.2d 337 (1987). “In order to meet the requirements of R.C. 4903.09, * * * the [commission’s] order must show, in sufficient detail, the facts in the record upon which the order is based, and the reasoning followed by the [commission] in reaching its conclusion.” Id. {¶ 94} This requirement is part and parcel of our standard of review: we will reverse a decision of the commission if it unlawful or unreasonable, and a decision that contravenes R.C. 4903.09 is necessarily unlawful and unreasonable. See Cleveland Elec. Illum. Co. v. Pub. Util. Comm., 76 Ohio St.3d 163 , 166, 666 N.E.2d 1372 (1996) (“A legion of cases establish that the commission abuses its discretion if it renders an opinion on an issue without record support”); Ideal Transp. Co. v. Pub. Util. Comm., 42 Ohio St.2d 195 , 199, 326 N.E.2d 861 (1975) (a commission order that fails to comply with the requirements of R.C. 4903.09 is unlawful). {¶ 95} This court has therefore not hesitated to reverse commission decisions that fail to sufficiently develop the record or explain the supporting rationale. In re Application of Columbus S. Power Co., 147 Ohio St.3d 439 , 2016- Ohio-1608, 67 N.E.3d 734 , ¶ 66; In re Application of Ohio Power Co., 155 Ohio St.3d 326 , 2018-Ohio-4698 , 121 N.E.3d 320 , ¶ 51. {¶ 96} The lead opinion correctly points out that in excluding the Distribution Modernization Rider revenue from the significantly-excessive- earnings test, “the commission failed to even cite R.C. 4928.143(F), let alone explain how that provision allows the commission to exclude [Distribution Modernization Rider] revenue on this basis. * * * [T]he commission’s failure to cite specific statutory authority for its actions is grounds for reversal.” Lead opinion at ¶ 20. The lead opinion itself, then, would apply R.C. 4903.09 sub silentio by reversing on the basis that the commission failed to support its order with statutory authority. In addition, the commission’s finding that Ohio Edison would 32  January Term, 2020 face “an unnecessary element of risk” if Distribution Modernization Rider revenue were included in the earnings test lacks any citation to record evidence and is therefore an insufficient rationale. See Ohio Consumers’ Counsel v. Pub. Util. Comm., 111 Ohio St.3d 300 , 2006-Ohio-5789 , 856 N.E.2d 213 , ¶ 28, 36. {¶ 97} Those determinations should end the analysis, and the court should reverse the commission’s decision and return this matter to the commission to provide the evidentiary citations and statutory support needed for us to review its determination that the Distribution Modernization Rider revenue should be excluded from the significantly-excessive-earnings test. There Is No Jurisdictional Bar to Review {¶ 98} The lead opinion asserts that this court’s consideration of the commission’s compliance with R.C. 4903.09 is jurisdictionally barred because appellant, Ohio Consumers’ Counsel, failed to raise that issue in its application for rehearing. The lead opinion’s assertion that we lack subject-matter jurisdiction to review errors not articulated in an application for rehearing, however, is contrary to the statutes establishing our power to review the commission’s orders. R.C. 4903.13 empowers this court to review the orders of the commission, and it does not limit our subject-matter jurisdiction to the issues presented by the parties. Rather, we must reverse, vacate, or modify the commission’s order if this court “is of the opinion that such order was unlawful or unreasonable.” And any order that is incapable of review because the commission failed to comply with the requirements of R.C. 4903.09 is unlawful and unreasonable. {¶ 99} Neither R.C. 4903.10, which states that “[n]o party shall in any court urge or rely on any ground for reversal, vacation, or modification not so set forth in the application” for rehearing, nor R.C. 4903.13, which requires the notice of appeal to “set[] forth the order appealed from and the errors complained of,” limit this court’s subject-matter jurisdiction to review the lawfulness and reasonableness of the commission’s decision. These statutes may guide the exercise of our 33  SUPREME COURT OF OHIO jurisdiction in reviewing the commission’s decision, and they justify this court’s disregarding an argument not asserted on rehearing or specified in the notice of appeal, but nothing in either of these statutes says that this court is without power or lacks subject-matter jurisdiction to consider issues that have not been properly put before the court when the court is of the opinion that the commission’s order is unlawful or unreasonable. {¶ 100} I recognize that it has often been said, usually by rote repetition, that the appellant’s failure to comply with R.C. 4903.10 or 4903.13 deprives this court of “jurisdiction” to consider an issue. E.g., lead opinion at ¶ 30; In re Complaint of Pilkington N. Am., Inc., 145 Ohio St.3d 125 , 2015-Ohio-4797 , 47 N.E.3d 786 , ¶ 19; Ohio Consumers’ Counsel v. Pub. Util. Comm., 127 Ohio St.3d 524 , 2010-Ohio-6239 , 941 N.E.2d 757 , ¶ 21. However, we have noted: The general term “jurisdiction” can be used to connote several distinct concepts, including jurisdiction over the subject matter, jurisdiction over the person, and jurisdiction over a particular case. * * * The often unspecified use of this polysemic word can lead to confusion and has repeatedly required clarification as to which type of “jurisdiction” is applicable in various legal analyses. Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75 , 2014-Ohio-4275 , 21 N.E.3d 1040 , ¶ 18. {¶ 101} Our public-utilities cases have propagated the confusion we have so often sought to clarify between the existence of subject-matter jurisdiction and the exercise of that subject-matter jurisdiction. {¶ 102} Subject-matter jurisdiction refers to the constitutional or statutory power of a court to adjudicate a particular class or type of case. State v. Harper, 34  January Term, 2020 ___ Ohio St.3d ___, 2020-Ohio-2913 , ___ N.E.3d___, ¶ 23; Pratts v. Hurley, 102 Ohio St.3d 81 , 2004-Ohio-1980 , 806 N.E.2d 992 , ¶ 11-12, 34. It “is determined without regard to the rights of the individual parties involved in a particular case.” Kuchta at ¶ 19. Rather, the focus is on whether the forum itself is competent to hear the controversy. State v. Harper at ¶ 23. {¶ 103} R.C. 4903.12 provides that “[n]o court other than the supreme court shall have power to review * * * any order made by the public utilities commission.” This court is the proper forum for this appeal. Nothing in R.C. 4903.10 or 4903.13 purports to limit our subject-matter jurisdiction over an appeal from the commission, and to the extent that this court has held otherwise in prior cases, those cases are irreconcilable with the plain text of the statutes and must be overruled. The Significantly-Excessive-Earnings Test {¶ 104} But rather than return this matter to the commission for it to clarify the factual and statutory support for its decision, the lead opinion would go on to decide whether R.C. 4928.143(F) permitted the commission to exclude revenue from the Distribution Modernization Rider from the earnings test. In doing that, the lead opinion necessarily construes R.C. 4928.143(F). At the same time, it rejects Ohio Edison’s arguments about what the statute means, simply because those interpretations of R.C. 4928.143(F) were not addressed below. {¶ 105} However, the meaning of a statute is a question of law that we review de novo. See Bur. of Workers’ Comp. v. Verlinger, 153 Ohio St.3d 492 , 2018-Ohio-1481 , 108 N.E.3d 70 , ¶ 6. Our role in the exercise of the judicial power granted to us by the Ohio Constitution is to interpret and apply the statute as the General Assembly enacted it. See Slingluff v. Weaver, 66 Ohio St. 621 , 64 N.E. 574 (1902), paragraph two of the syllabus. The parties may espouse arguments regarding the meaning of a statute, but in the end, it is the courts that have the authority and the duty to “say what the law is,” Marbury v. Madison, 5 U.S. 137 , 35  SUPREME COURT OF OHIO 177, 2 L.Ed. 60 (1803). This court abdicates that responsibility if it rejects out of hand an interpretation of a statute just because it is raised for the first time in this court. {¶ 106} The lead opinion also rejects Ohio Edison’s plain-language arguments because the commission’s orders did not mention them as bases for the removal of the rider’s revenue. However, Ohio Edison did not have to apply for a rehearing or file a cross-appeal in order to get these arguments before the court. Nor was Ohio Edison aggrieved by the commission’s order—it obtained the relief sought in this regard—and it therefore was not required to apply for a rehearing or file a cross-appeal to preserve any argument. See Internatl. Paper Co. v. Testa, 150 Ohio St.3d 348 , 2016-Ohio-7454 , 81 N.E.3d 1225 , ¶ 33 (explaining that a protective cross-appeal was not required when the appellee is not aggrieved by the board of tax appeals’ ruling). R.C. 4903.10 bars a party from seeking “reversal, vacation, or modification” of an order issued by the commission on any ground not set forth in an application for rehearing. But this statute does not bar a party from seeking the affirmance of the commission’s order for a reason not asserted on rehearing. Further, a notice of appeal may be filed by one seeking “reversal, vacation, or modification” of an order issued by the commission. R.C. 4903.13. Ohio Edison, however, asks this court to affirm the commission’s order. {¶ 107} The lead opinion relies on In re Application of Duke Energy Ohio, Inc., 148 Ohio St.3d 510 , 2016-Ohio-7535 , 71 N.E.3d 997 , ¶ 23-26, for the assertion that “our practice is not to uphold a commission’s decision based on a justification asserted by a party on appeal that is different from the justification the commission provided in its order.” Lead opinion at ¶ 47. However, the court in Duke Energy Ohio relied on R.C. 4903.09, which requires the commission to support its decision with findings and reasons to enable an effective appellate review, in declining to review a justification different from that which was included 36  January Term, 2020 in the commission’s order. Id. at ¶ 24. Yet here, the lead opinion expressly would not reverse and remand the commission’s order as violating R.C. 4903.09. {¶ 108} The lead opinion therefore disregards Ohio Edison’s arguments explaining why the commission’s exclusion of the Distribution Modernization Rider revenue from the significantly-excessive-earnings test was lawful and reasonable. At the same time, it would not remand this matter to the commission to address those arguments in a written opinion and instead would decide that the rider’s revenue must be included in the test. That is, the justices joining the lead opinion and the justice concurring in judgment only take an action affecting Ohio Edison’s property interests without any tribunal having ever fully addressed its arguments in response. {¶ 109} Nothing in R.C. 4903.09 precludes this court from upholding the commission’s order on grounds other than those the commission provided. After all, R.C. 4903.13 empowers us to reverse, vacate, or modify the commission’s final orders, and it does not limit our review of the final order to simply agreeing or disagreeing with the justifications that the commission gave in support of that order. If the commission’s ultimate order is lawful and reasonable, we do not have the power to reverse it. {¶ 110} Therefore, since the court decides to consider the merits of whether the commission’s decision to exclude the Distribution Modernization Rider revenue from the significantly-excessive-earnings test is authorized by the statute, it must address all arguments regarding what the statute means. {¶ 111} As Ohio Edison points out, R.C. 4928.143(F) directs the commission in conducting the significantly-excessive-earrings test to base its comparisons on “publicly traded companies, including utilities, that face comparable business and financial risk,” make “adjustments for capital structure as may be appropriate,” and consider “the capital requirements of future committed investments in this state.” The commission found that including the Distribution 37  SUPREME COURT OF OHIO Modernization Rider revenue in the earnings test increased the risk to the companies, and the only relevant risk to the companies under R.C. 4928.143(F) is business and financial risk. As a creature of statute, the commission had no authority to consider any other type of “risk” than that provided by the statute, and the only risk mentioned in the statute is the business and financial risk to the companies. See In re Application of Ohio Edison Co., 158 Ohio St.3d 27 , 2019- Ohio-4196, 139 N.E.3d 875 , ¶ 17 (the commission has no authority to exceed its statutory powers). {¶ 112} And the Distribution Modernization Rider “was designed to provide credit support for the FirstEnergy Corporation—through the companies— so it could borrow capital on more reasonable terms in order to support its grid- modernization initiatives.” In re Ohio Edison Co., 157 Ohio St.3d 73 , 2019-Ohio- 2401, 131 N.E.3d 906 , ¶ 18 (lead opinion). The rider therefore related to Ohio Edison’s capital structure, which includes the amount of and interest rate on its debt, as well as the cost of capital. See R.C. 4909.155. Lastly, the rider has helped make it possible for Ohio Edison to commit to a grid-modernization plan that will require a capital investment of hundreds of millions of dollars. See In re Filing by Ohio Edison Co., Cleveland Elec. Illum. Co., & Toledo Edison Co. of a Grid Modernization Business Plan, Pub. Util. Comm. No. 16-481-EL-UNC (Opinion and Order) at ¶ 111-112, 119 (July 17, 2019). {¶ 113} The Distribution Modernization Rider therefore affects Ohio Edison’s financial risk, its capital structure, and the capital requirements for committed investments in this state, and R.C. 4928.143(F) affords the commission discretion to adjust these components as may be appropriate. Conclusion {¶ 114} It is premature to reach the merits of whether R.C. 4928.143(F) permitted the commission to exclude the Distribution Modernization Rider revenue from the significantly-excessive-earnings test. The commission has failed in its 38  January Term, 2020 duty to sufficiently explain its reasons and support its decision with citations to the evidence and statutory authority, and that is reversible error. But the majority goes too far in requiring the commission to include the rider’s revenue in the earnings test. I would return this matter to the commission to explain and support its decision and save review of the merits for another day. FRENCH, J., concurs in the foregoing opinion. _________________ Bruce Weston, Ohio Consumers’ Counsel, and William Michael, Angela D. O’Brien, and Maureen R. Willis, Assistant Consumers’ Counsel, for appellant. Dave A. Yost, Attorney General, and John Jones and Thomas W. McNamee, Assistant Attorneys General, for appellee. Calfee, Halter & Griswold, L.L.P., James F. Lang, and Kari D. Hehmeyer; and FirstEnergy Service Company and Robert M. Endris, for intervening appellee. _________________ 39

2021-01-26 18:01:57.960277+00

https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2016vv0513-138-0

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS ********************* ELIANA COWART, * No. 16-513V * Special Master Christian J. Moran Petitioner, * v. * Filed: January 5, 2021 * SECRETARY OF HEALTH * Entitlement; meningococcal vaccine; AND HUMAN SERVICES, * initial reaction; fibromyalgia; need * for hearing. Respondent. * ********************* Sean F. Greenwood, The Greenwood Law Firm, Houston, TX, for petitioner; Voris E. Johnson, United States Dep’t of Justice, Washington, DC, for respondent. DECISION DENYING ENTITLEMENT1 Eliana Cowart claims that the meningococcal conjugate vaccine she received on March 27, 2015, caused her to suffer fibromyalgia. However, Ms. Cowart has not established how a meningococcal conjugate vaccine can cause fibromyalgia. Thus, she is not entitled to received compensation on this theory. Earlier in this litigation, Ms. Cowart had claimed that the meningococcal conjugate vaccine caused an acute allergic reaction. More recently, Ms. Cowart has filed a motion to dismiss this claim voluntarily. With the elimination of this claim, a decision against Ms. Cowart can enter allowing Ms. Cowart to file a 1 Because this decision contains a reasoned explanation for the action in this case, the undersigned is required to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This posting means the decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), the parties have 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material before posting the decision. motion for review of the fibromyalgia claim. I. Facts Eliana Cowart (nee Moody) was born on March 18, 1999. Exhibit 3 at 1. She was homeschooled by her mother prior to her vaccination, exhibit 18, and before December 12, 2012, her medical records indicate that she had minimal health issues, mostly relating to asthma and seasonal allergies. On December 12, 2012, Ms. Cowart saw her pediatrician, Dr. Almazan, and sought treatment regarding potential epilepsy, reporting that “[e]very few months or so she develops these transient episodes of entire upper body quivering.” Exhibit 4 at 32. Ms. Cowart’s father was also reported to have been diagnosed with epilepsy. Id. Ms. Cowart’s pediatrician referred her to a pediatric neurologist, Dr. Tomasevic, id. at 33 ; however, Ms. Cowart never saw him, Pet’r’s Mot. for Ruling on the Record ¶ 2. For the following three years, she attended regular check-ups with her pediatrician, but there are no further notations regarding myoclonic jerks or symptoms of epilepsy in any of these records. See exhibit 4 at 14-31 (showing six visits between March 29, 2013-July 28, 2014, without mention of myoclonic jerks or epilepsy symptoms); see also Pet’r’s Mot. ¶ 2 (“For the next three years, Eliana never discussed [epilepsy] symptoms with her doctors because she did not experience them.”). Dr. Almazan and Dr. Hilliard conducted mental health screenings at three different primary care visits on March 29, 2013; March 21, 2014; and March 27, 2015. See exhibit 4 at 11-12, 17-18, 29-30. Dr. Hilliard did not note any concerns, although the questionnaires are not part of the record.2 Despite the lack of findings from Dr. Hilliard, Ms. Cowart’s mental health from before the vaccination has become an issue in the litigation. A neuropsychologist the Secretary retained, Deborah Anderson, opined that Ms. Cowart was experiencing significant life stressors immediately before her vaccination – specifically that “heading off to college after being homeschooled 2 Ms. Cowart reported on July 13, 2020, that she had filed the mental health screening forms from Dr. Hilliard as exhibit 99. Pet’r’s Status Rep., filed July 13, 2020. Exhibit 99, however, appears not to contain any information about mental health screening. Rather, exhibit 99 presents results from various laboratory studies. In any event, after Ms. Cowart filed exhibit 99, neither party sought to obtain additional evidence from the experts they had retained. 2 previously by her mother her entire academic career could be a significant stressful life event” and that “medical/psychological records indicate the likelihood of other concurrent interpersonal familial/personal stressors both pre- and post-date of reported vaccine event.” Exhibit F at 29. However, a psychiatrist Ms. Cowart has retained, Tracey Marks, responded that “[p]rior to receiving the vaccination, [Ms. Cowart] was already taking some college courses. Also, there is no evidence to suggest that [Ms. Cowart’s] college transition was sufficiently disruptive to cause a depressive episode.” Exhibit 37 at 12. As part of an annual routine health maintenance visit with Dr. Hilliard, Ms. Cowart received the Menveo meningococcal vaccine on March 27, 2015. Exhibit 2 at 1. That night, at approximately 11:00 p.m., Ms. Cowart’s parents took her to the emergency room, where she complained of “back pain shooting down arms, tingling fingers.” Exhibit 3 at 8. She also reported that the pain in her arm began within one minute of receiving the vaccine earlier that day, and that the shooting pain and tingling started approximately two hours prior to her arrival at the emergency room. Id. at 3 . The clinical impression was acute allergic reaction to the meningococcal vaccine. Id. at 4 . About one week after this incident, Ms. Cowart saw her pediatrician, Dr. Hilliard, still complaining of “pain occurring in her back (lower), shoulders – feels like twinges.” Exhibit 4 at 8 (April 3, 2015). Dr. Hilliard made a note that she “[c]alled and spoke with Dr. Atkins and she never heard of that reaction before.” 3 Id. Nevertheless, she reported the incident to the Vaccine Adverse Event Reporting Service. 4 Id. At the following visit on April 13, 2015, the primary complaints seemed to be seizure-like and neurological symptoms, as opposed to back and shoulder pain, which were not mentioned. Id. at 5 (“[Ms. Cowart] feels like she is in a dream state and what she describes as auras – parents think it may be partial seizures . . . happen[ing] several times/day.”). These complaints precipitated a referral by Dr. Hilliard to neurologist Dr. Linda Leary. Id. at 7 . 3 Information about Dr. Atkins is not readily available in the record. 4Dr. Hilliard’s VAERS report is not part of the record. See Pet’r’s Status Rep., filed July 27, 2020. 3  Ms. Cowart then saw Dr. Leary on April 28, 2015. Exhibit 6 at 1. At this appointment, Dr. Leary identified the trigger or referral reason for this neurological evaluation as her being “[a]sked to consult to provide recommendations on myoclonic jerks by Dr. Tricia Hilliard.” Id. at 2 . Dr. Leary recorded that Ms. Cowart was complaining of “fatigue, tremors, pain, dizziness, nausea, myalgias[,] headache, blurry vision, flashes of light.” Id. at 15 . Initially, Dr. Leary recorded an impression of “[m]yoclonic jerks; may represent onset of juvenile epilepsy or could be primarily muscular or represent form of movement disorder” as well as “[h]eadaches; mild though frequent.” Id. at 4 . Dr. Leary ordered an MRI and EEG to determine potential epilepsy, but otherwise sent Ms. Cowart back to her primary care pediatrician. Id. (stating that “[c]are will be returned to primary physician”). The result of the MRI and EEG appeared normal. Id. at 31 (brain MRI on May 9, 2015), 34 (EEG on May 26, 2015). Thus, a diagnosis of epilepsy was not made. It appears that Ms. Cowart saw a rheumatologist, Jorge C. Zamora-Quezada, on May 26, 2015. Exhibit 6 at 8 (Dr. Leary’s note regarding an appointment with a rheumatologist). However, Ms. Cowart could not obtain any records from Dr. Zamora-Quezada. See Pet’r’s Status Rep., filed July 1, 2020, ¶ 3; Pet’r’s Status Rep., filed July 27, 2020, ¶ 3. After the MRI and EEG, Ms. Cowart saw Dr. Leary for a follow-up appointment on June 30, 2015. Ms. Cowart complained of “[n]ot doing well academically; struggling with college algebra. Having more troubling focusing” and “[p]eriods of sadness, anger, urge to cry.” Exhibit 6 at 8. The review of systems, including musculoskeletal, neurological, and behavioral/psychiatric was normal.5 On physical exam, Dr. Leary found “[n]o pain on pressure at typical trigger points for fibromyalgia.” Id. at 9 . Dr. Leary recommended various steps including an MRI of Ms. Cowart’s cervical spine, neuropsychological testing to establish a baseline, and a psychological/psychiatric evaluation. Id. at 9-10 . (Although on July 7, 2015, Ms. Cowart’s father attempted to schedule an appointment, the next opening with a neuropsychologist was in December. Exhibit 10 at 32-33, 150.) Dr. Leary also requested that the family inform her of the 5 Ms. Cowart filed a three-page list of problems to which, she believes, Dr. Leary referred. Pet’r’s Status Rep., filed July 1, 2020, ¶ 4. This list of problems includes musculoskeletal problems such as “extreme fatigue,” “shakes/tremors,” “arms sore as if worked out,” “legs hurt,” and “muscle spasms.” Exhibit 96. This list seems inconsistent with Dr. Leary’s “review of systems,” that showed musculoskeletal as normal. Exhibit 6 at 8. 4 results of Ms. Cowart’s upcoming appointment with a rheumatologist and that Ms. Cowart return in two months. Exhibit 6 at 10. The MRI of the cervical spine that Dr. Leary had ordered took place on July 8, 2015. The history is “spells.” The result of this MRI was normal. Exhibit 97 at 3-4. Ms. Cowart saw a rheumatologist, Dr. Mark Nelson, on July 2, 2015. Exhibit 5 at 13-16. Ms. Cowart reported “chronic fatigue, frequent vertigo usually associated with nausea and polyarthralgias and myalgias since getting the vaccine.” Id. at 13 . Dr. Nelson reported results of a detailed physical examination, describing testing at shoulders, elbows, hips, knees, ankles, and feet. Id. at 14 . These were all normal. Dr. Nelson initially diagnosed her with “serum sickness” and ordered rheumatological labs. Id. at 16 . Ms. Cowart had a follow-up appointment with Dr. Nelson on August 4, 2015. She reported virtually identical symptoms to those complained of during her July 2, 2015 visit. See id. at 9 (reporting “severe chronic fatigue and chronic generalized fibromyalgia like musculoskeletal pain primarily in the muscles”). However, the outcome of Dr. Nelson’s musculoskeletal spine exam differed. On August 4, 2015, Dr. Nelson reported: “spine: 1-2+ tenderness of her fibromyalgia trigger points and tender [at] lumbar spine mild lower back pain”). Id. at 11 ; see also id. at 15 (recording on July 2, 2015 a “normal” spine exam). Dr. Nelson diagnosed her with fibromyalgia. Id. at 6 . Dr. Nelson also diagnosed her with polyarthralgia, chronic fatigue syndrome, and bilateral headaches. Id. Ms. Cowart next saw her neurologist, Dr. Leary, on September 8, 2015. Dr. Leary’s office note for this visit begins with an interval history, stating “[s]een by rheumatology; not felt to represent fibromyalgia. Thought most [consistent with] serum sickness.” Exhibit 10 at 29. 6 At her visit with Dr. Leary on September 8, 2015, Ms. Cowart complained of chronic, severe headaches three times per day, lasting 30 minutes. On physical exam, Dr. Leary again found “[n]o pain on pressure at typical trigger points for fibromyalgia.” Id. at 30 . Dr. Leary repeated 6 This report is partially correct. It seems to reflect Dr. Nelson’s opinion following Ms. Cowart’s first appointment with him on July 2, 2015. But, after the second visit on August 4, 2015, Dr. Nelson diagnosed Ms. Cowart with fibromyalgia but did not remark on serum sickness. 5 her recommendations for neuropsychological testing, and psychological/psychiatric evaluation because the family had not obtained these. Dr. Leary also prescribed a medication for the headaches, topiramate (Topamax). Id. One week later, Ms. Cowart returned to her rheumatologist, Dr. Nelson. The history begins that Ms. Cowart is “a 16-year-old female who has already graduated from high school and is taking some college courses online [who] was perfectly healthy until 15 March when she was given a meningococcal vaccine and has developed chronic fatigue syndrome and some generalized musculoskeletal pain.” Exhibit 5 at 3. Her current complaints included “generalized body aches, some increased bruising and difficulty concentrating.” Id. Dr. Nelson’s physical examination produced multiple “normals.” Unlike the August 4, 2015 entry that showed a problem in Ms. Cowart’s spine, the September 15, 2015 record has no entry about her spine. Nevertheless, Dr. Nelson’s record reports: “Fibromyalgia Onset: 8/4/2015 Status: Active.” Id. at 4 . Dr. Nelson increased the dose of Cymbalta. Id. at 6 . Ms. Cowart began having problems with cloudy and bloody urine and her mother thought it could be related to the topiramate that Dr. Leary had prescribed. See exhibit 10 at 11-18. Ms. Cowart returned to Dr. Leary’s office where a physician’s assistant, Florence Wall, saw her on December 14, 2015. After stopping the topiramate, Ms. Cowart experienced more headaches. Ms. Cowart also reported that she had a seizure the day before. Id. at 17 . With respect to the recommendations for counseling, Ms. Wall recorded that “[f]amily has not yet seen psychology/psychiatry,” and she repeated the recommendation. Id. at 18-19 . For the neuropsychological testing, Ms. Cowart was scheduled to see someone in three days; however, this appointment had to be rescheduled. Id. at 15 . After consulting Dr. Leary, Ms. Wall ordered gabapentin. Id. at 19 . In the next visit with Dr. Leary, Ms. Cowart reported that the gabapentin was effective for headaches. Exhibit 10 at 13 (visit on February 5, 2016). By this time, Ms. Cowart was a first-year college student in a nursing program. Dr. Leary offered two impressions: first “headaches, chronic, not refractory, unspecified headache” and second “rheumatology evaluation suggestive of fibromyalgia.” Id. at 13 . The plan was to follow up in six months. Ms. Cowart also sought psychiatric evaluation and psychological treatment. On Dr. Leary’s referral, she visited Josué Romero, a clinical psychologist, on 6 February 2, 2016, and March 4, 2016. Exhibit 12 at 1-2. In the first session, Dr. Romero obtained background information about Ms. Cowart and Ms. Cowart told him that her problems started after a meningitis vaccine in March 2015. Ms. Cowart also reported various other problems. After conducting neuropsychological testing on March 4, 2016, Dr. Romero diagnosed her with major depressive disorder and recommended additional individual counseling. Id. After Ms. Cowart filed her petition in this case on April 26, 2016, she saw another rheumatologist, Dr. Hashish, on May 26, 2016. Dr. Hashish’s assessment indicated fibromyalgia, among other conditions. Exhibit 9 at 4. During this visit, Dr. Hashish noted that Ms. Cowart’s diffused joint pain and swelling had been occurring for a “few years.” Id. at 2 . Ms. Cowart saw Dr. Hashish once more on June 28, 2016. Id. at 6 . As early as June 30, 2015, Dr. Leary was recommending counseling, exhibit 6 at 10, and Dr. Romero did as well. Ms. Cowart attended counseling sessions at Abiding Hope Institute of Christian Counseling from November 28, 2016, to May 29, 2017. See exhibit 25. During one of these sessions, Ms. Cowart’s counselor, Ms. Kelly Anderson, noted that Ms. Cowart’s “[d]epression symptoms go back to when she was 13/14 [years old].” Id. at 21 . However, some notations from Ms. Cowart’s visits with Ms. Anderson indicate that some psychological struggles during this time were connected to her physical pain, which Ms. Cowart attributed to her vaccine reaction. See id. at 32, 46 . Ms. Cowart continued treatment after she filed her petition, mostly for conditions connected to her fibromyalgia diagnosis. These treatments included: aquatic therapy, see exhibit 78 at 24; physical therapy, see exhibit 7 (June 16-Aug. 20, 2016); treatment for dysmenorrhea, including more severe fibromyalgia symptoms around menstrual cycles, see exhibit 8 at 9 (July 15, 2016); and treatment for complications stemming from fibromyalgia medications, see exhibit 78 at 19-21 (Sept. 29, 2016), exhibit 76 at 6 (Nov. 19, 2018); see also exhibit 92 at 1 (seeking treatment for possible Crohn’s disease, not apparently connected to Ms. Cowart’s fibromyalgia diagnosis, on June 10, 2019); exhibit 93 at 17 (seeking treatment from a sleep specialist for chronic fatigue syndrome on Sept. 10, 2019). The parties have devoted relatively less attention to medical appointments after 2016. See Pet’r’s Mot. at 10-12; Resp’t’s Resp. at 12-13. 7 II. Procedural History With one small exception, the case proceeded along a typical, but lengthy, path. The petition was filed on April 26, 2016. 7 Over the next seven months, Ms. Cowart periodically filed medical records. The Secretary reviewed this material. The Secretary determined that compensation was not appropriate for several reasons. These included the lack of clear diagnosis, the lack of a statement from a treating doctor that said the vaccination harmed Ms. Cowart, and the lack of an expert report. Thus, the Secretary recommended that compensation be denied. Resp’t’s Rep., filed Feb. 24, 2017, at 12. In a status conference, Ms. Cowart announced an intention to retain an expert. To promote the filing of persuasive expert reports, the undersigned issued a set of Instructions. See order, issued April 17, 2017. Ms. Cowart filed a series of reports from experts. Ms. Cowart first filed a report from Michael McCabe, who has earned a Ph.D. in immunology but not a medical degree. Exhibit 20 (report). Mr. McCabe’s first report, which was four pages, did not comply with the Instructions.8 Ms. Cowart was directed to file a supplemental report from Mr. McCabe, and she did so, as exhibit 26. In exhibit 26, Mr. McCabe stated that the relevant disease for Ms. Cowart is fibromyalgia. He presented what he characterized as a “biologically plausible theory” to explain how the Menveo vaccine can cause fibromyalgia. Exhibit 26 at 5-6. Ms. Cowart also filed a one-paragraph letter from a rheumatologist who treated her, Mark Nelson. Exhibit 33. The Secretary responded in two ways. To respond most directly to Mr. McCabe, the Secretary submitted a report from Carlos Rose, a pediatric rheumatologist. Dr. Rose agreed that Ms. Cowart suffers from fibromyalgia. 7 The original petitioner was Ms. Cowart’s father, Rev. Andrew Thomas Moody, because his daughter Eliana Moody was a minor. When Ms. Moody reached adulthood, she became the petitioner. Order, issued March 30, 2017. Then, Ms. Moody married and changed her name to Eliana Cowart. Pet’r’s Mot., filed Nov. 16, 2020. For simplicity, this decision treats Ms. Cowart as petitioner. 8 This decision refers to Michael McCabe with the honorific “Mr.” to distinguish his credentials from medical doctors. See Dominguez v. Sec’y of Health & Human Servs., No. 12- 378V, 2019 WL 3315270 , at *3 n.2 (Fed. Cl. Spec. Mstr. June 24, 2019). 8 Exhibit A at 10. Dr. Rose, however, disagreed with the opinion that the Menveo vaccine caused Ms. Cowart’s fibromyalgia. In Dr. Rose’s opinion, Ms. Cowart’s fibromyalgia originated before the vaccination, when she was suffering Major Depressive Disorder. Id. at 10-13 . The role of Major Depressive Disorder was emphasized by the second expert whom the Secretary retained, Ms. Anderson.9 Ms. Anderson is a licensed psychologist and neuropsychologist. She is not a medical doctor. After a review of the medical records, Ms. Anderson opined Ms. Cowart “had a pre-existing history of depression and/or depressive symptoms several years before the date of reported vaccination injury.” Exhibit F at 24. The Secretary’s introduction of a neuropsychologist led to a response from Ms. Cowart. Ms. Cowart filed a report from Tracey Marks, a psychiatrist, on August 9, 2018. Dr. Marks opined that Ms. Cowart’s depression came after and was a result of the fibromyalgia. Exhibit 37. Ms. Cowart also obtained a supplemental report from Mr. McCabe, which she filed on October 9, 2018, as exhibit 53. Mr. McCabe generally disagreed with the points Dr. Rose had offered to contest the connection between the vaccination and Ms. Cowart’s fibromyalgia. The volleying continued as the Secretary filed reports from Dr. Rose (exhibit J) and Ms. Anderson (exhibit K) on February 4, 2019. They continued to maintain their previous expressed opinions. At this point, an unusual development occurred. Despite presenting reports from Mr. McCabe and Dr. Marks, Ms. Cowart sought an opportunity to present a report from a third expert, a rheumatologist, Eric Gershwin. Pet’r’s Status Rep., filed Feb. 20, 2019. The Secretary opposed this request because Ms. Cowart had earlier opportunities to present a report from a rheumatologist. Resp’t’s Not., filed Feb. 26, 2019, at 2. The Secretary argued that because the Secretary had presented reports from Dr. Rose and Ms. Anderson, the late retention of Dr. Gershwin would give Dr. Gershwin “the improper advantage of responding to respondent’s experts, rather than properly providing an opinion in the first instance.” Id. The Secretary argued: “This is fundamentally unfair and prejudicial to respondent, and should not 9 Because Deborah Anderson does not have a medical license, this decision will refer to her as “Ms. Anderson.” 9 be allowed.” Id. In a status conference, Ms. Cowart’s attorney represented that he had just discovered Dr. Gershwin might be able to assist his client, and further represented that Dr. Gershwin would submit a report promptly. Ms. Cowart was allowed to obtain a report from Dr. Gershwin, despite the Secretary’s objection. Order, issued March 4, 2020. 10 Dr. Gershwin prepared a report relatively quickly, and Ms. Cowart filed it on March 29, 2019. Exhibit 74. Dr. Gershwin proposed the causation theory on which Ms. Cowart is relying: (1) the vaccination caused an immediate reaction, including headaches; (2) doctors overtreated Ms. Cowart’s initial symptoms; (3) this overtreatment caused stress in Ms. Cowart; and (4) the stress led to fibromyalgia. Id. at 4 . While Dr. Gershwin clearly expressed this theory, he did not express an opinion about when Ms. Cowart had developed fibromyalgia. Thus, Ms. Cowart was directed to obtain a supplemental report from him. Order, issued April 24, 2019. Dr. Gershwin’s supplemental report attempted to tie up these loose ends. He stated: “I agree with Dr. Nelson’s assessment that as of July 2, 2015, [Ms. Cowart] was suffering from fibromyalgia.” Exhibit 79 at 2. In response, the Secretary presented a supplemental report from Dr. Rose. Dr. Rose emphasized that Ms. Cowart had problems before vaccination that, at least, made her predisposed to suffering fibromyalgia. To Dr. Rose, any adverse reaction and any overtreatment for that adverse reaction could not be singled out as the cause of Ms. Cowart’s fibromyalgia. Exhibit Q at 5-6. In a July 1, 2019 status conference, the parties agreed that Dr. Rose’s report appeared to complete the written evidentiary record. Thus, the parties were ordered to submit briefs regarding Ms. Cowart’s entitlement. This order recognized that the parties may submit additional articles accompanied by a report 10 Later, the Secretary argued that his opposition to a report from Dr. Gershwin was “well-founded” because Dr. Gershwin “essentially coopted the causation theory advanced by respondent’s experts, which Dr. Gershwin had the benefit of knowing before developing his opinion. In other words, Dr. Gershwin had an unfair advantage in this case not afforded to petitioners’ experts in other cases.” Resp’t’s Resp. at 22 n.8. This argument differs slightly from the Secretary’s February 26, 2019 opposition. Earlier, the Secretary had argued that a late submission from Dr. Gershwin would be prejudicial to the respondent. In the more recent brief, the Secretary argues prejudice to other petitioners. 10 from an expert to explain the significance of any articles. Order for Entitlement Briefs, issued Aug. 1, 2019. Ms. Cowart accepted this offer and presented a final report from Dr. Marks. Dr. Marks cited five articles, which were filed as exhibits 82-86, that concern adolescent mental health and gender bias in treatment. Exhibit 95. Ms. Cowart filed her motion for ruling on the record on October 9, 2019. She argued that she “asserted a biologically plausible mechanism demonstrating that the Menveo vaccine can cause fibromyalgia.” Pet’r’s Mot. at 20. This mechanism was the theory that Dr. Gershwin asserted: “the Menveo vaccine can cause headaches and widespread pain . . . When combined with certain genetic factors, the stress associated with the pain and medical help-seeking behaviors, can trigger an individual to develop fibromyalgia.” Id. at 26 ; accord id. at 29 . To establish the interval in which the development of fibromyalgia is appropriate, Ms. Cowart relied upon Dr. Gershwin’s second report. Id. at 30 (citing exhibit 79). Ms. Cowart also relied upon Dr. Marks’s opinion to maintain that her more significant mental health problems arose after the fibromyalgia appeared, not before it. The Secretary argued that Ms. Cowart had not met her burden of proof. Although the Secretary accepted that the theory that stress can lead to fibromyalgia is generally plausible, the Secretary challenged whether that theory explains what happened to Ms. Cowart. See Resp’t’s Resp. at 23-24. Consistent with the opinions that Dr. Rose and Ms. Anderson had presented in their reports, 11 the Secretary argued that Ms. Cowart had stresses independent of the vaccination before and after the vaccination. Id. at 24-28 . In addition, the Secretary argued that the alleged overtreatment Dr. Gershwin identified constitutes a superseding cause of Ms. Cowart’s fibromyalgia. Id. at 28-30 (citing Restatement (Second) of Torts §§ 440-41). Finally, the Secretary questioned Ms. Cowart’s evidence regarding timing. Id. at 31-33. Ms. Cowart replied. She maintained that she had established all the elements necessary for compensation. Pet’r’s Reply, filed Dec. 17, 2019. 11Like Ms. Cowart, the Secretary also accepted the offer to present a final report from an expert. The Secretary filed an additional report from Ms. Anderson on December 10, 2019. Exhibit V. 11  After an initial review of the parties’ submissions, the undersigned posed specific questions regarding Ms. Cowart’s allegation that she suffered an initial reaction to the vaccination and the evidence regarding her alleged depression and/or stress before the vaccination. Order, issued Jan. 27, 2020. Ms. Cowart responded by arguing that the undersigned should give more weight to the absence of pre-vaccination records indicating depression diagnosis or symptoms than Dr. Hashish’s notations regarding Ms. Cowart’s symptoms having existed for a “few years.”12 See Pet’r’s Supp’l Br. ¶ 4. The Secretary argued in response that these notations made by doctors and health professionals visited post-vaccination should be regarded as accurate given that they constitute “information supplied to or by health professionals to facilitate diagnosis and treatment of medical conditions.” Resp’t’s Supp’l Br. at 4-5 (quoting Cucuras v. Sec’y of Health & Human Servs., 993 F.3d 1525 , 1528 (Fed. Cir. 1993)). In the supplemental briefs, the parties also disputed whether the initial vaccine reaction lasted longer than six months, thus potentially constituting a compensable injury separate from Ms. Cowart’s fibromyalgia. Ms. Cowart stated that she “continued to experience symptoms of dizziness, fatigue, pain, myalgia, sleep disturbances, headache, and hand tingling” for more than six months after her vaccination. Pet’r’s Supp’l Br. ¶ 3. The Secretary contended that, even if there were an acute reaction to the vaccine (which the Secretary does not concede), her post-vaccination medical records indicate otherwise and the alleged six-month duration undercuts Dr. Gershwin’s theory of causation. Resp’t’s Supp’l Br. at 2-3. Based upon the evidence and arguments submitted, the undersigned found that Ms. Cowart had not established that she could recover on the claim that the vaccination caused her to suffer fibromyalgia. Order regarding Entitlement, issued May 20, 2020. The basis for this finding is set out again below. 12 Ms. Cowart did not address the notations made by Dr. Romero and Ms. Anderson, referenced in respondent’s responsive supplemental brief, which specifically pertain to pre - vaccination depression. See Resp’t’s Supp’l Br. at 4 (citing exhibits 12 and 25). Ms. Anderson noted that Ms. Cowart reported having depression symptoms since she was 13-14 years old. See exhibit 25 at 21. Dr. Romero diagnosed Ms. Cowart with major depressive disorder in March 2016, but did not note any pre-vaccination symptoms of depression. See generally exhibit 12. However, based on her overall argument, the undersigned will construe her argument for weighing pre-vaccination medical records over post-vaccination notations as extending to these records as well. 12  The Order regarding Entitlement kept open the possibility that Ms. Cowart might recover on her claim that the March 27, 2015 vaccination caused her an immediate adverse reaction. Id. at 13-15 . To continue to maintain this claim, Ms. Cowart was required to produce additional documents. That evidence as well as evidence already in the record could support a finding that Ms. Cowart’s initial reaction was sufficiently severe to warrant compensation as defined in the Vaccine Act. See 42 U.S.C. § 300aa–11(c)(1)(D). Accordingly, Ms. Cowart was directed to develop this material. Order, issued May 19, 2020. In response, Ms. Cowart filed additional documents from 2015. Exhibits 96- 99. While the undersigned has considered these documents and integrated them into the fact section above, neither Ms. Cowart nor the Secretary requested revision of the May 20, 2020 Order regarding Entitlement. See Sanchez v. Sec’y of Health & Human Servs., 142 Fed. Cl. 247 , 250-51 (2019) (denying motion for review when parties did not request revision to factual findings after the submission of additional material), vacated on non-relevant grounds, 809 Fed. App’x 843 (Fed. Cir. 2020). Ms. Cowart determined that she did not want to pursue the claim that the vaccination caused an immediate (and lasting) reaction. Instead, Ms. Cowart wanted to file a motion for review regarding her fibromyalgia claim. Pet’r’s Status Rep., filed Sep. 29, 2020. In an October 16, 2020 status conference, Ms. Cowart elaborated that she could not satisfy the requirement that any vaccine-caused injury last longer than six months. Ms. Cowart formally filed a motion to dismiss the immediate reaction claim on December 22, 2020. The present decision restates much of the May 20, 2020 order regarding entitlement for the fibromyalgia claim, for which Ms. Cowart has announced that she intends to seek appellate review. Due to Ms. Cowart’s withdrawal of the immediate reaction claim, this decision does not include the tentative analysis contained in the May 20, 2020 order. III. Standards for Adjudication A petitioner is required to establish her case by a preponderance of the evidence. 42 U.S.C. § 300aa–13(1)(a). The preponderance of the evidence standard requires a “trier of fact to believe that the existence of a fact is more probable than its nonexistence before [he] may find in favor of the party who has the burden to persuade the judge of the fact's existence.” Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315 , 1322 n.2 (Fed. Cir. 2010) (citations 13 omitted). Proof of medical certainty is not required. Bunting v. Sec’y of Health & Human Servs., 931 F.2d 867 , 873 (Fed. Cir. 1991). Distinguishing between “preponderant evidence” and “medical certainty” is important because a special master should not impose an evidentiary burden that is too high. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367 , 1379-80 (Fed. Cir. 2009) (reversing special master's decision that petitioners were not entitled to compensation); see also Lampe v. Sec’y of Health & Human Servs., 219 F.3d 1357 (Fed. Cir. 2000); Hodges v. Sec’y of Health & Human Servs., 9 F.3d 958 , 961 (Fed. Cir. 1993) (disagreeing with dissenting judge's contention that the special master confused preponderance of the evidence with medical certainty). The Vaccine Act requires a petitioner to establish five elements. 42 U.S.C. § 300aa-11(c)(1)(A)-(E). Ms. Cowart satisfies three--receipt of a vaccination (paragraph A), receipt of a vaccination in the United States (paragraph B), and not previously receiving compensation (paragraph E). The remaining paragraphs concern causation (paragraph C) and severity (paragraph D). Generally, causation is the most contested factor. To establish causation, petitioners bear a burden “to show by preponderant evidence that the vaccination brought about [the vaccinee’s] injury by providing: (1) a medical theory causally connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and (3) a showing of a proximate temporal relationship between vaccination and injury.” Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274 , 1278 (Fed. Cir. 2005). IV. Development of Fibromyalgia After Ms. Cowart’s withdrawal of the initial reaction claim, Ms. Cowart’s remaining claim is that she developed fibromyalgia as an indirect consequence of the vaccination. As the parties do not dispute that Ms. Cowart has suffered fibromyalgia for longer than six months, she meets the severity requirement. Thus, the only question is whether she meets the causation requirement as set forth in Althen. A. Medical Theory To succeed in proving entitlement to compensation, petitioners must first show by a preponderance of the evidence “a medical theory causally connecting the vaccination to the injury.” Althen, 418 F.3d at 1278 . Ms. Cowart has failed to meet her burden of presenting a persuasive medical theory here. 14  Though Ms. Cowart’s medical theory developed over the course of multiple expert reports, the expert reports of Mr. McCabe and Dr. Gershwin work together to propose a two-step theory. See Pet’r’s Supp’l Br. ¶ 1. The two steps are: (1) Ms. Cowart suffered an initial reaction to the vaccine, see exhibit 20 at 3-4 (McCabe), and (2) the doctors’ overtreatment for that initial reaction led to disturbances in the stress-response system that then led to fibromyalgia. Exhibit 74 at 3-4 (Gershwin) (citing exhibit 57 (Arnold) at 384). This occurs via a resulting impaired ability to activate the hypothalamic-pituitary-adrenal (HPA) axis. Id.; exhibit 64 (Chrousos et al.) at 7. Ms. Cowart argues that she has presented a “biologically plausible” theory. Pet’r’s Mot. at 20, ¶ 53. Ms. Cowart’s characterization of her evidence is accurate in that her experts stated that they were expressing “plausible” ideas. See exhibit 20 (Mr. McCabe) at 3-4; exhibit 26 (Mr. McCabe) at 5-6; exhibit 53 (Dr. Gershwin) at 3. However, as the Secretary pointed out, Resp’t’s Resp. at 19-20, 23, the correct standard is not “biologic plausibility.” LaLonde v. Sec’y of Health & Human Servs., 746 F.3d 1334 , 1339 (Fed. Cir. 2014) (“[S]imply identifying a ‘plausible’ theory of causation is insufficient for a petitioner to meet her burden of proof.”); Moberly v. Sec’y of Health & Human Servs., 592 F.3d 1315 , 1322 (Fed. Cir. 2010) (rejecting “proof of a ‘plausible’ or ‘possible’ causal link between the vaccine and injury” as the applicable statutory standard). While LaLonde and Moberly articulated that a theory must be persuasive, a more recent case from the Federal Circuit demonstrates the consequence of failing to present opinions at the correct level. In Boatmon, petitioners’ experts opined that a vaccine can serve as an exogenous stressor triggering the upregulation of cytokines. Boatmon v. Sec’y of Health & Human Servs., 941 F.3d 1351 , 1355-56 (Fed. Cir. 2019). On appeal, the Federal Circuit held that these opinions were insufficient, stating that “the Special Master erred in allowing a theory that was at best ‘plausible’ to satisfy the Petitioners’ burden of proof.” Id. at 1360 ; see also Kottenstette v. Sec’y of Health & Human Servs., No. 15-1016V, 2020 WL 953484 , at *3 (Fed. Cl. Spec. Mstr. Feb. 12, 2020) (deeming the “biologic credibility” standard as akin to the invalid “plausibility” standard and striking it down in accordance with Boatmon). The Federal Circuit, therefore, affirmed the Court of Federal Claims’ reversal of an award of compensation. Boatmon, 942 F.3d at 1363. Boatmon, therefore, dictates that Ms. Cowart has failed to meet her burden 15 of proof to present a persuasive medical theory.13 Nevertheless, the remaining Althen prongs are further analyzed. B. Logical Sequence If Ms. Cowart had presented a persuasive medical theory explaining causation, she also would be required to show with preponderant evidence “a logical sequence of cause and effect showing that the vaccination was the reason for the injury.” Althen, 418 F.3d at 1278 . The key issue in making this determination is whether Ms. Cowart was in fact overtreated following her vaccination. The second issue is whether any overtreatment constitutes an intervening cause. 1. Whether doctors overtreated Ms. Cowart Ms. Cowart’s assertion of a logical sequence of cause and effect between her vaccine and development of fibromyalgia relies heavily on the resulting stress from overtreatment between her vaccination and onset of fibromyalgia. In fact, Dr. Gershwin characterizes overtreatment as the “lynchpin of why unlike other individuals who experience local reactions to vaccines, [Ms. Cowart] continued to experience symptoms and developed fibromyalgia.” Exhibit 74 at 4. Thus, overtreatment is an essential part of the chain of causation alleged by Ms. Cowart. Despite the critical importance of overtreatment, neither Dr. Gershwin nor Ms. Cowart explain how Ms. Cowart was overtreated. To review, Dr. Gershwin asserted that Ms. Cowart suffered from fibromyalgia on July 2, 2015. Exhibit 79 at 2. The medical records show that, between her vaccination and July 2, 2015 (the diagnosis date referenced by Dr. Gershwin, representing a time span of approximately four months between vaccination and diagnosis), Ms. Cowart had six doctors’ appointments with two different doctors. See exhibit 4 at 5, 8 (two visits to Dr. Hilliard on April 3, 2015, and April 13, 2015); exhibit 6 at 1, 7 (two visits to Dr. Leary on April 28, 2015, and June 30, 2015); id. at 31-32, 50 (MRI 13 Ms. Cowart cites Lee, in which the special master accepted a medical theory virtually identical to the one provided in this case. However, in Lee, which was decided in 2005 before Boatmon, LaLonde, or Moberly were issued, the Special Master looked for a “plausible biological mechanism” by which the vaccine could cause the injury at issue. Lee v. Sec’y of Health & Human Servs., No. 03-2479V, 2005 WL 1125672 , at *6, *17 (Fed. Cl. Spec. Mstr. Apr. 8, 2005). As explained above, “plausibility” is no longer recognized as an acceptable standard capable of satisfying a petitioner’s burden of proof. 16 conducted May 9, 2015, and EEG conducted on May 26, 2015, both ordered by Dr. Leary). It is not clear how Ms. Cowart was overtreated.14 Dr. Gershwin’s conclusion that doctors overtreated her seems to be just that, a conclusion. He does not explain how multiple doctors’ visits alone constitute “overtreatment” sufficient to trigger a stress response and ultimately lead to the development of fibromyalgia. He simply states, without defining or expounding on the nature of “overtreatment,” that instead of being given counseling on vaccine reactions and physical therapy, “[Ms. Cowart] began this long road involving multiple physicians, unneeded imaging, and extensive and unneeded laboratory tests.” Exhibit 74 at 3. It is unclear how doctors’ appointments and diagnostic testing constitutes overtreatment. Additionally, the Secretary raises the point that Ms. Cowart asserted that her treating physicians dismissed and minimized her complaints, which is inconsistent with the idea that they overtreated her. Resp’t’s Resp. at 29. In response, Ms. Cowart stated that “[a]n individual can be over- treated for certain symptoms, e.g., the psychological symptoms and under treated for others e.g., chronic pain.” Pet’r’s Reply ¶ 16. However, there is virtually no evidence of overtreatment specifically with respect to psychological symptoms before Ms. Cowart’s fibromyalgia diagnosis, and Dr. Gershwin does not make this psychological versus physical distinction in his report when he discusses overtreatment. If anything, Ms. Cowart’s overtreatment, particularly with respect to her psychological symptoms, seems to have occurred after her August 4, 2015 fibromyalgia diagnosis. During this period, Ms. Cowart continued visits to Dr. Leary, saw another rheumatologist Dr. Hashish, and sought treatment for several different conditions related to her fibromyalgia (including aquatic therapy, physical therapy, treatment from an OB/GYN for dysmenorrhea, and a sleep specialist for chronic fatigue syndrome). See supra Part I. She also underwent neuropsychological testing from Dr. Romero and attended counseling sessions. See id. 14 The information contained in the text was available to Dr. Gershwin when he wrote his reports. After the May 20, 2020 Order regarding Entitlement, Ms. Cowart added information about a visit to a rheumatologist on May 26, 2015. See Pet’r’s Status Rep., filed July 1, 2020, ¶ 3; Pet’r’s Status Rep., filed July 27, 2020, ¶ 3. Ms. Cowart also provided the results of a July 8, 2015 MRI. Exhibit 97 at 3-4. However, neither the rheumatologist nor the MRI was surprisingly new as Dr. Leary had referred to them in her notes. Exhibit 6 at 8; exhibit 8 at 10. 17  Therefore, the lack of clear overtreatment during the critical time period— between her vaccination and fibromyalgia onset—as well as the ambiguity regarding how Ms. Cowart was overtreated makes it unlikely that she was overtreated during this time period. Indeed, if anything, she was overtreated after her fibromyalgia diagnosis, a finding which does not aid in establishing causation under Dr. Gershwin’s theory. 2. Overtreatment as an intervening cause If Ms. Cowart could establish that the doctors overtreated her, the Secretary contends that “the actions of petitioner’s treating physicians operate as an intervening/superseding cause that breaks the causal chain between the Menveo vaccine and petitioner’s fibromyalgia, because those actions meet most, if not all, of the factors set forth in the Restatement.” Resp’t’s Resp. at 30. Specifically, the Secretary points to factors (a)-(e) of Restatement (Second) of Torts § 442. In response, Ms. Cowart argues that “the overtreatment Petitioner describes is not an ‘extraordinary operation’ because local reactions, myalgias, and headaches are part of a sequelae of the vaccination at issue, and they continuously operated along with the over-treatment to bring about the harm.” Pet’r’s Reply ¶ 17. The Restatement provides “the damages assessable against the actor include not only the injury originally caused by the actor’s negligence but also the harm resulting from the manner in which the medical . . . services are rendered.” Restatement (Second) of Torts § 457(a). Cases have followed this guidance. See, e.g., LaClair v. Suburban Hosp., Inc., 518 Fed. App’x 190, 197 (4th Cir. 2013) (stating that “tortfeasors are liable for more significant harm inflicted by intervening negligent medical professionals” unless they were “extraordinarily negligent”); Sharkey v. Penn Cent. Transp. Co., 493 F.2d 685 , 690-91 (2d Cir. 1974) (articulating the test as whether “the cause of the aggravation is a normal intervening cause”). In this case, however, neither party has discussed Restatement § 457. Thus, the undersigned does not resolve the intervening cause issue as it pertains to alleged overtreatment in this case. In summary, for prong 2, although overtreatment is essential to her theory, Ms. Cowart has not persuasively shown that overtreatment occurred in her case. The evidence does not persuasively show that she was overtreated in the months following any alleged initial vaccine reaction. Thus, the undersigned finds that Ms. Cowart has not met her burden in establishing a logical sequence of cause and effect. See Hibbard v. Sec’y of Health & Human Servs., 698 F.3d 1355 , 1364 18 (Fed. Cir. 2012); Dodd v. Sec’y of Health & Human Servs., 114 Fed. Cl. 43 , 52-57 (2013). C. Timing Finally, petitioners must show by a preponderance of the evidence “a proximate temporal relationship between vaccination and injury.” Althen, 418 F.3d at 1278 . The timing prong actually contains two parts. A petitioner must show the “timeframe for which it is medically acceptable to infer causation” and that the onset of the disease occurred in this period. Shapiro v. Secʼy of Health & Human Servs., 101 Fed. Cl. 532 , 542-43 (2011), recons. denied after remand on other grounds, 105 Fed. Cl. 353 (2012), aff’d without op., 503 F. App’x 952 (Fed. Cir. 2013). Here, Ms. Cowart’s chain of events implicates the appropriateness of the amount of time from the alleged initial reaction to the development of fibromyalgia. In evaluating the temporal relationship between the initial reaction and the onset of fibromyalgia, the first question, again, is what is the interval that medical science expects between a stressful event (or between stressful events) and the onset of fibromyalgia? Dr. Gershwin states that “it is difficult for researchers to develop a traditional timetable for when an individual may develop fibromyalgia after an event; however, there are many studies demonstrating the onset of fibromyalgia within a few months of an event.” Exhibit 79 at 2. Therefore, under his assessment, the appropriate time frame for onset of fibromyalgia is less definite than many other conditions. Dr. Rose did not comment on this particular claim in his responsive report, instead mostly focusing on the lack of causation due to pre- vaccination factors in the medical records. However, if Dr. Gershwin’s theory were accepted, the chain of causation connecting initial vaccine reaction to overtreatment to resulting stress to development of fibromyalgia could extend several months. The next question is when did Ms. Cowart develop fibromyalgia? Dr. Gershwin was specifically directed to answer this question in a supplemental report. See order, issued April 24, 2019. In his report, Dr. Gershwin stated that “as of July 2, 2015, [Ms. Cowart] was suffering from fibromyalgia.” Exhibit 79 at 2. However, it appears that Dr. Gershwin has misread the medical records. When Ms. Cowart saw Dr. Nelson on July 2, 2015, he conducted a physical 19 examination. He specifically determined that a trigger point examination did not produce results consistent with fibromyalgia. Exhibit 5 at 15. As a rheumatologist, Dr. Nelson’s determination about whether a patient whom he examined was suffering from fibromyalgia is almost unimpeachable. Moreover, two other records bulwark Dr. Nelson’s determination. First, on June 30, 2015, Dr. Leary found “[n]o pain on pressure at typical trigger points for fibromyalgia.” Id. at 9 . The report from another doctor just two days before Dr. Nelson’s evaluation considerably strengthen the value of Dr. Nelson’s opinion. Second, Dr. Nelson’s record from September 15, 2015, indicates that Ms. Cowart has “active” fibromyalgia with an onset date of August 4, 2015. Id. at 3-4 . Between the July 2, 2015 appointment, when Dr. Nelson stated that she did not have fibromyalgia, and the September 15, 2015 appointment, when Dr. Nelson stated she had active fibromyalgia, is the August 4, 2015 appointment. In the August appointment, Dr. Nelson found “1-2+ tenderness of her fibromyalgia trigger points” in her spine. Id. at 11 . This different finding appears to underlie the change in Ms. Cowart’s diagnosis. 15 To some degree, the error in Dr. Gershwin’s review of the medical records diminishes the value of his opinion. However, whether a shift in the day of diagnosis from July 2, 2015, to August 4, 2015, affects the prong 3 analysis is not clear. This uncertainty is due to vagueness in Dr. Gershwin’s opinion in two respects. First, Dr. Gershwin has not explained when the overtreatment occurred. (This absence of specificity may be because, as explained above, there is no evidence of any overtreatment.) Without some basis for determining when a 15 Ms. Cowart, too, seems to misinterpret the medical records. In defending Dr. Gershwin’s opinion that she was suffering fibromyalgia on July 2, 2015, Ms. Cowart claims that she “had to wait for several months before receiving a referral to a rheumatologist. Once sh e presented to the rheumatologist, he declined to give her a diagnosis for fibromyalgia even though when [Ms. Cowart] returned describing the same exact symptoms, she was diagnosed with fibromyalgia.” Pet’r’s Mot. ¶ 22. Compare exhibit 5 at 13 (reporting on July 2, 2015, “chronic fatigue, frequent vertigo usually associated with nausea and polyarthralgias and myalgias since getting the vaccine”), with id. at 9 (reporting on August 4, 2015, “severe chronic fatigue and chronic generalized fibromyalgia like musculoskeletal pain primarily in the muscles”). 20 doctor overtreated Ms. Cowart, starting the clock for the appropriate temporal interval is not possible. Second, Dr. Gershwin has not defined with much precision what an appropriate interval is. One reason is that the relationship between stressful events that trigger the onset of fibromyalgia is poorly understood. But, without some outside limit, the persuasiveness of Dr. Gershwin’s opinion diminishes. See Hennessey v. Sec’y of Health & Human Servs., 91 Fed. Cl. 126 , 142 (2010) (the expert’s “overly broad” opinion on timing effectively “renders Althen’s third prong a nullity”). While Dr. Gershwin has opined that a diagnosis of fibromyalgia on July 2, 2015, falls within the appropriate time frame, whether a diagnosis on August 4, 2015, is also appropriate is not stated. Because Ms. Cowart bears the burden of establishing the Althen prongs by preponderant evidence, these deficiencies in her evidence might be sufficient to rule against her. However, the outcome of her claim that the vaccination caused her fibromyalgia does not depend upon prong 3. Rather, for the reasons explained above, Ms. Cowart has not met her burden of proof on prongs 1 and 2. And, even if Ms. Cowart could be found to have met her burden on prong 3, a “proximate temporal association alone does not suffice to show a causal link between the vaccination and the injury.” Grant v. Sec’y of Health & Human Servs., 956 F.2d 1144 , 1148 (Fed. Cir. 1992). V. Hearing Special masters retain wide discretion in determining whether an evidentiary hearing is necessary. Kreizenbeck v. Sec’y of Health & Human Servs., 945 F.3d 1362 , 1365 (Fed. Cir. 2020) (citing 42 U.S.C. § 300aa-12(d)(3)(B)(v) (“In conducting a proceeding on a petition a special master . . . may conduct such hearings as may be reasonable and necessary.”)). The special master must only determine “that the record is comprehensive and fully developed before ruling on the record.” Id. at 1366 (citing Simanski v. Sec’y of Health & Human Servs., 671 F.3d 1368 , 1385 (Fed. Cir. 2012)). Here, a hearing for the fibromyalgia claim was not necessary. The parties have had ample opportunity to develop the record both in terms of the facts presented, as well as the expert opinions in the case. Indeed, six different experts have opined across twelve different expert reports, providing significant material through which the undersigned was able to discern the parties’ medical theories, arguments, and responses. The parties have also submitted briefs. 21  Ms. Cowart’s claim regarding fibromyalgia failed for reasons that a hearing could not cure. First, her experts offered theories that are “plausible,” not “persuasive.” Ms. Cowart presented these reports even though Federal Circuit cases rejecting the plausibility standard, Moberly and LaLonde, were issued before the opinions. Moreover, even after the Secretary argued that Boatmon, too, prevents compensation on a plausible theory, Ms. Cowart did not submit revised reports. Second, Ms. Cowart did not support a critical assumption in Dr. Gershwin’s theory--the assumption that doctors who treated her for symptoms after the vaccination overtreated her. The undersigned’s review of the record has not suggested any instances of overtreatment and Dr. Gershwin has not identified any. Because Dr. Gershwin may not introduce new opinions at a hearing, see Simanski, 671 F.3d at 1382-83 , a hearing on this issue would have been futile. VI. Conclusion For the foregoing reasons, Ms. Cowart did not present sufficient evidence to show that the meningococcal vaccine caused her to develop fibromyalgia. Accordingly, this claim for compensation is DENIED. This decision will serve as a predicate for any motion for review Ms. Cowart may wish to file. See 42 U.S.C. § 300aa–12(d)(3)(A) (requiring special master to issue a decision). IT IS SO ORDERED. s/ Christian J. Moran Christian J. Moran Special Master 22

2021-01-26 18:11:36.513319+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2021/2021-Ohio-180.pdf

[Cite as State v. Cantrell, 2021-Ohio-180 .] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio, : Plaintiff-Appellee, : No. 20AP-27 (C.P.C. No. 18CR-3281) v. : (REGULAR CALENDAR) James W. Cantrell, : Defendant-Appellant. : D E C I S I O N Rendered on January 26, 2021 On brief: [G. Gary Tyack] Prosecuting Attorney, Barbara A. Farnbacher, and Sarah V. Edwards, for appellee. On brief: Yeura Venters, Public Defender, and Ian J. Jones, for appellant. APPEAL from the Franklin County Court of Common Pleas BROWN, J. {¶ 1} This is an appeal by defendant-appellant, James W. Cantrell, from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas following a jury trial in which he was found guilty of failure to comply with an order or signal of a police officer, with a penalty enhancing specification. {¶ 2} On July 9, 2018, appellant was indicted on one count of failure to comply with an order or signal of a police officer in violation of R.C. 2921.331. The indictment further alleged that appellant's operation of a motor vehicle caused a substantial risk of serious physical harm to persons or property. No. 20AP-27 2 {¶ 3} The matter came for trial before a jury beginning October 15, 2019. The first witness for the state was Obetz Police Officer Shaun Watson. On June 23, 2018, at approximately 11:45 p.m., Officer Watson was in a marked police cruiser when he responded to a dispatch reporting an altercation between a male and female in the vicinity of Interstate 270 ("I-270"), between Alum Creek Drive and Groveport Road. Officer Watson arrived near the interstate ramp of I-270 and Alum Creek Drive and spoke to a female, ("K.B."), who provided a description of a vehicle (a silver Cadillac) at a nearby McDonald's restaurant. {¶ 4} Officer Watson drove to the McDonald's, located at the intersection of Alum Creek Drive and Groveport Road; he pulled his cruiser into the parking lot and subsequently observed a silver Cadillac on the west side of McDonald's. As Officer Watson was backing up his cruiser, "the Cadillac began to speed up rapidly." Officer Watson immediately turned on the cruiser's lights and siren "and proceeded to go after the individual." (Tr. Vol. I at 161.) The officer drove "around the bend" of McDonald's "where the drive-thru is" located. (Tr. Vol. I at 162.) {¶ 5} Officer Watson radioed that he had "an individual running from me." The suspect vehicle exited McDonald's and turned onto Groveport Road; he was traveling "in the wrong direction" on Groveport Road, "and then he immediately [came] in the wrong direction in the Alum Creek lanes." (Tr. Vol. I at 162.) Officer Watson testified he "had to increase [his] speed drastically immediately" in order to pursue the vehicle. The suspect vehicle made a left turn, heading "northbound in the southbound lanes of Alum Creek." (Tr. Vol. I at 164.) The officer noted that Alum Creek Drive has "three lanes on the southbound lane and three lanes on the northbound lane." (Tr. Vol. I at 163.) {¶ 6} The suspect vehicle then went "all the way from the left lane all the way to the right lane." (Tr. Vol. I at 164.) Officer Watson observed the car travel across "three lanes of traffic." (Tr. Vol. I at 165.) The vehicle then veered toward a concrete barrier and struck the barrier; as a result of the impact, one of the tires was "remove[d] * * * from the rim," and the vehicle "immediately [went] into a spinout." (Tr. Vol. I at 165-66.) Appellant's vehicle "almost" collided with an ambulance that had arrived on the scene to attend to the female who had reported the earlier altercation. (Tr. Vol. I at 165.) The spinout caused the No. 20AP-27 3 vehicle "to go through another intersection at 270 at Alum Creek and then spin[] off into the berm." (Tr. Vol. I at 166.) {¶ 7} Officer Watson exited his cruiser and arrested appellant. Upon handcuffing appellant and placing him in the back of the cruiser, Officer Watson noticed "the smell of alcohol." The officer also observed appellant had "some slow, slurred speech," and that "his eyes were red and glossy." (Tr. Vol. I at 178.) At trial, Officer Watson identified appellant as the individual he arrested that evening. {¶ 8} The entire chase lasted between "13 to 16 seconds." (Tr. Vol. I at 167.) The area of Alum Creek Drive where the chase ensued has a 45 m.p.h. speed limit. Officer Watson testified that, during the pursuit, he accelerated his cruiser to "60 miles per hour." (Tr. Vol. I at 180.) Officer Watson believed the suspect vehicle "was going faster than that" at the time of the events. (Tr. Vol. I at 207.) According to Officer Watson, appellant committed "eight or nine" infractions during the incident. (Tr. Vol. I at 179.) {¶ 9} Brad Worthington was called as a witness on behalf of plaintiff-appellee, State of Ohio. On the evening of June 23, 2018, at approximately 11:45 p.m., Worthington was driving northbound on Alum Creek Drive when he observed a male and a female in a vehicle in the southbound lane near the I-270 ramp. Worthington was concerned by what he witnessed and turned his vehicle around and then observed the male jump into a Cadillac and drive to a nearby McDonald's. {¶ 10} Worthington drove southbound on Alum Creek Drive to the McDonald's and called a dispatcher, providing the license plate number of the Cadillac. A short time later, a police cruiser pulled into the McDonald's and the Cadillac "takes off and they're on a chase." (Tr. Vol. II at 243.) Worthington testified that the cruiser's "lights were on" when the Cadillac was still in the parking lot of McDonald's. (Tr. Vol. II at 244.) {¶ 11} When the vehicles exited the parking lot, "[t]hey headed * * * the wrong way," traveling in the "southbound lane headed north." Worthington then returned "to the initial point where everything happened," and he observed "the Cadillac was wrecked" and "at least six police cruisers" were at the scene. (Tr. Vol. II at 245.) {¶ 12} At the close of the state's case-in-chief, counsel for appellant made a Crim.R. 29 motion for judgment of acquittal. The trial court denied the motion. No. 20AP-27 4 {¶ 13} Appellant, age 25, testified on his own behalf. Appellant stated he was not familiar with the traffic pattern at the intersection of Groveport Road and Alum Creek Drive on the date of the incident (June 23, 2018), and that the last time had he been at that intersection was in 2012. According to appellant, he was unaware Groveport Road was now a divided highway or that it was illegal to make a left-hand turn out of McDonald's onto Groveport Road. {¶ 14} On the evening of June 23, 2018, appellant was on Alum Creek Drive when he and his then girlfriend "had a disagreement and she got out of the vehicle." Appellant "decided that if she wanted * * * to get out of the car, she could find her own way home; and I was going to head home, proceed home." (Tr. Vol. II at 266-67.) Appellant drove to a nearby McDonald's. While sitting in the parking lot, appellant "tried to call [his] mother to ask her what [he] should do about the situation that previously happened." (Tr. Vol. II at 266.) {¶ 15} Appellant testified that he "backed out and went to go exit the McDonald's parking lot, and I turned left on Groveport Road. And when I did that and I went to turn left back onto Alum Creek, I instantly became aware of the dividers and the median." Appellant further stated: "I decided to pursue going the wrong way until I was -- what I was planning on doing was going to the intersection to get back on the right side of the road." According to appellant, "once I turned left onto Alum Creek Drive, there was an ambulance coming directly towards me and two oncoming vehicles, and that's when I was aware of the cop lights behind me." (Tr. Vol. II at 267.) {¶ 16} Appellant had been drinking that evening and when he left the McDonald's he "was frustrated, distraught with the evening, upset." (Tr. Vol. II at 268.) Appellant testified he became aware of the police cruiser "[a]fter the yellow poles and the McDonald's and the dividers on the right side, when it's a solid median." (Tr. Vol. II at 270.) Appellant stated he did not hear any sirens from the police cruiser, but he saw "the police lights in my rearview mirror." (Tr. Vol. II at 272.) The vehicle struck the median, and "popped a tire." (Tr. Vol. II at 275.) According to appellant, the vehicle was not disabled, and he could have continued driving. {¶ 17} On cross-examination, appellant stated he "sped up" on Alum Creek Drive when he realized he was "on the wrong side of the road." (Tr. Vol. II at 281.) Appellant No. 20AP-27 5 testified he noticed the police cruiser behind him when he "was on Alum Creek Drive." (Tr. Vol. II at 284.) Appellant stated he was driving a "normal rate of speed" during the events. (Tr. Vol. II at 281.) {¶ 18} At trial, the parties entered into the following stipulations: (1) "the defendant was convicted of operating a motor vehicle while intoxicated as a result of this incident"; (2) he was "also convicted of criminal mischief as a result of the incident between him and [K.B.] from [June 23, 2018], to which Officer Watson responded"; and (3) "the realignment of Groveport Road and the associated improvements on Alum Creek Drive were constructed in 2012 and 2013." (Tr. Vol. I at 149-50.) {¶ 19} Following deliberations, the jury returned a verdict finding appellant guilty of failure to comply with an order or signal of a police officer, and the jury made the additional finding that appellant's operation of the motor vehicle caused a substantial risk of serious physical harm to persons and/or property. By judgment entry filed December 11, 2019, the trial court sentenced appellant to two years of community control and suspended his driver's license for a period of 36 months. {¶ 20} On appeal, appellant sets forth the following two assignments of error for this court's review: [I.] Appellant's conviction for Failure to Comply with an Order or Signal of a Police Officer was against the manifest weight of the evidence. [II.] The evidence was legally insufficient to support Appellant's conviction for Failure to Comply with an Order or Signal of a Police Officer. {¶ 21} Appellant's two assignments of error are interrelated and will be considered together. Under these assignments of error, appellant challenges his convictions as not supported by sufficient evidence and as against the manifest weight of the evidence. With respect to his sufficiency argument, appellant contends the only reasonable conclusion for the jury to reach was that he did not intentionally fail to comply with an order or signal of the police officer. In arguing that his conviction was against the manifest weight of the evidence, appellant maintains the record is clear he did not act intentionally to flee or elude the officer. No. 20AP-27 6 {¶ 22} Under Ohio law, "[t]he legal concepts of sufficiency of the evidence and weight of the evidence involve different determinations." State v. M.L.D., 10th Dist. No. 15AP-614, 2016-Ohio-1238 , ¶ 45. A Crim.R. 29 motion for judgment of acquittal "tests the sufficiency of the evidence, and, accordingly, we apply the same standard of review to Crim.R. 29 motions that we use in reviewing sufficiency of the evidence as a challenge to a guilty verdict." Id. at ¶ 44. In considering a sufficiency challenge, "we construe the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt." Id. at ¶ 45, citing State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. {¶ 23} By contrast, "[w]hen a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony." Id. at ¶ 8, citing State v. Thompkins, 78 Ohio St.3d 380 , 387 (1997). A reviewing court "should reverse a conviction as against the manifest weight of the evidence in only the most 'exceptional case in which the evidence weighs heavily against conviction,' instances in which the jury 'clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.' " Id., quoting State v. Martin, 20 Ohio App.3d 172 , 175 (1st Dist.1983). {¶ 24} R.C. 2921.331 defines the offense of failure to comply with an order or signal of a police officer, and R.C. 2921.331(B) states: "No person shall operate a motor vehicle so as willfully to elude or flee a police officer after receiving a visible or audible signal from a police officer to bring the person's motor vehicle to a stop." Under Ohio law, "[t]he term 'willfully' is synonymous with 'purposely' or 'intentionally.' " State v. Scott, 8th Dist. No. 99524, 2013-Ohio-4599 , ¶ 16. In this respect, " '[p]urpose is defined in terms of a specific intention either to cause a certain result, or to engage in conduct of a certain nature regardless of what the offender intends to accomplish through that conduct.' " State v. Cole, 3d Dist. No. 13-10-30, 2011-Ohio-409 , ¶ 22, quoting 1974 committee comments to R.C. 2901.22. {¶ 25} R.C. 2921.331 "sets forth a range of violations of varying degrees for failure to comply with the order or signal of a police officer, spanning in severity from first-degree misdemeanors to third-degree felonies." State v. McDonald, 137 Ohio St.3d 517 , 2013- No. 20AP-27 7 Ohio-5042, ¶ 4. As relevant to the instant case, the enhancement provision of R.C. 2921.331(C)(5)(a) states in part: "A violation of division (B) of this section is a felony of the third degree if the jury or judge as trier of fact finds * * * by proof beyond a reasonable doubt * * * (ii) [t]he operation of the motor vehicle by the offender caused a substantial risk of serious physical harm to persons or property." {¶ 26} Thus, the offense of failure to comply with an order or signal of a police officer "is elevated to a felony of the third degree if the State proves beyond a reasonable doubt that '[t]he operation of the motor vehicle by the offender caused a substantial risk of serious physical harm to persons or property.' " State v. Brownlee, 9th Dist. No. 27255, 2015-Ohio- 2616, ¶ 28, quoting R.C. 2921.331(C)(5)(a)(ii). {¶ 27} In accordance with R.C. 2901.01(A)(8), the term " '[s]ubstantial risk' " is defined to mean "a strong possibility, as contrasted with a remote or significant possibility, that a certain result may occur or that certain circumstances may exist." R.C. 2901.01(A) further provides in part as follows: (5) "Serious physical harm to persons" means any of the following: (a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment; (b) Any physical harm that carries a substantial risk of death; (c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity; (d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement; (e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain. (6) "Serious physical harm to property" means any physical harm to property that does either of the following: No. 20AP-27 8 (a) Results in substantial loss to the value of the property or requires a substantial amount of time, effort, or money to repair or replace; (b) Temporarily prevents the use or enjoyment of the property or substantially interferes with its use or enjoyment for an extended period of time. {¶ 28} Accordingly, in order to sustain a conviction under R.C. 2921.331, the state was required to prove that appellant "willfully fled or eluded a police officer while receiving a visible or audible signal to bring the vehicle to a stop." State v. Odorizzi, 7th Dist. No. 00 BA 21 (Dec. 19, 2001). Further, with respect to the penalty enhancement, the state was required to prove "that the operation of the motor vehicle caused a substantial risk of physical harm to persons or property." Id. A showing of "[a] strong possibility that harm could occur creates the mental culpability." Id., citing State v. Semenchuk, 122 Ohio App.3d 30 , 47 (8th Dist.1997). {¶ 29} We initially consider appellant's challenge as to the sufficiency of the evidence. Construing the evidence most strongly in favor of the prosecution, as we are required to do in addressing a sufficiency challenge, the record indicates the following. On the evening of June 23, 2018, Officer Watson responded to the area of I-270, Alum Creek Drive and Groveport Road, following a report of an altercation involving a male and a female. When he arrived at the location, the officer was provided with the description of a Cadillac at a nearby McDonald's restaurant. {¶ 30} Officer Watson drove to the McDonald's and pulled into the parking lot; he subsequently observed the suspect vehicle in the back corner of the parking lot, approximately 50 to 60 feet away. As Officer Watson put his cruiser in reverse and began backing up, the Cadillac "took off" and "began to speed up." (Tr. Vol. I at 161.) Officer Watson immediately activated the cruiser's lights and siren and began pursuit of the vehicle; the Cadillac was still in the McDonald's parking lot when Officer Watson employed the lights and siren. The suspect vehicle sped out of the McDonald's and immediately made a left turn, traveling the wrong direction on Groveport Road. The vehicle then made another left turn onto Alum Creek Drive, again traveling in the wrong direction (i.e., traveling northbound in the southbound lanes). No. 20AP-27 9 {¶ 31} Officer Watson, who had radioed that he had an individual "running from me," sped up in pursuit; he observed appellant driving north across three lanes of southbound Alum Creek Drive. (Tr. Vol. I at 162.) Appellant's vehicle then struck a concrete median barrier, causing one of the tires to pop off the rim and the vehicle to go into a "spinout." (Tr. Vol. I at 166.) The vehicle almost struck an ambulance that had been dispatched to the area following the earlier report of an altercation involving appellant and his then girlfriend. According to appellant's own testimony, in addition to the ambulance, he observed two other "oncoming vehicles" as he drove in the wrong direction on Alum Creek Drive. (Tr. Vol. II at 267.) As a result of the spinout, the vehicle traveled through "another intersection" at I-270 and Alum Creek Drive before coming to a stop on the berm of the roadway. (Tr. Vol. I at 166.) Officer Watson, who testified that the posted speed limit on Alum Creek Drive was 45 m.p.h., estimated that appellant was traveling "faster than" 60 m.p.h. during the incident. (Tr. Vol. I at 207.) {¶ 32} Under Ohio law, "[a] trier of fact may infer from the evidence whether a defendant was aware of a police officer's signal to stop." State v. Garrard, 170 Ohio App.3d 487 , 2007-Ohio-1244 , ¶ 28 (10th Dist.), abrogated in part on other grounds, 124 Ohio St.3d 8 . Here, viewing the evidence in a light most favorable to the prosecution, there was sufficient evidence upon which a reasonable trier of fact could have found beyond a reasonable doubt that appellant failed to comply with an order or signal of a police officer, and that he created a substantial risk of serious physical harm to persons or property while operating his vehicle. Accordingly, appellant's contention that his conviction was based on legally insufficient evidence is not persuasive. {¶ 33} We next consider appellant's manifest weight argument. While appellant contends he did not intentionally flee from the officer, the jury heard conflicting testimony on this issue. At trial, the defense's theory of the case was that appellant was unaware the officer was in pursuit of him as he left the McDonald's. As noted, appellant also testified he was unfamiliar with the traffic patterns in the area and that he was confused during the events because he had been drinking and was upset. {¶ 34} The state, however, presented testimony by the officer that he activated his cruiser lights while appellant was still in the McDonald's parking lot. Officer Watson further testified that, as he was backing up his cruiser in the parking lot, appellant's vehicle No. 20AP-27 10 "took off" and "began to speed up rapidly" in exiting the McDonald's. (Tr. Vol. I at 161.) Officer Watson's testimony was corroborated by that of Worthington, an individual who had reported the earlier altercation between appellant and his then girlfriend, and who had driven to McDonald's after observing appellant travel to that location in the Cadillac. Specifically, Worthington testified that he observed the cruiser pull into the McDonald's and that the cruiser's "lights were on" at the time appellant was still in the parking lot. Worthington also observed appellant's vehicle "speeding off" after the officer arrived. (Tr. Vol. II at 244.) The jury also heard conflicting testimony regarding the speed in which appellant was operating his vehicle after exiting McDonald's. While appellant testified he was driving a "normal rate of speed," the Officer Watson stated he believed appellant was traveling well over the posted speed limit during the pursuit. (Tr. Vol. II at 281.) {¶ 35} While a reviewing court "is permitted to consider the credibility of the witnesses in ruling upon a manifest-weight-of-the-evidence argument," this "court's 'review must nevertheless be tempered by the principle that weight and credibility questions are primarily for the trier of fact.' " State v. Hall, 12th Dist. No. CA2005-08-217, 2006-Ohio-4206 , ¶ 76, quoting State v. Kash, 12th Dist. No. CA2002-10-247, 2004-Ohio- 415, ¶ 25, citing State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. Further, "[a] defendant is not entitled to a reversal on manifest weight grounds merely because inconsistent evidence was presented at trial." State v. Strider-Williams, 10th Dist. No. 10AP-334, 2010-Ohio-6179 , ¶ 13, citing State v. Raver, 10th Dist. No. 02AP-604, 2003- Ohio-958, ¶ 21. In this respect, "[t]he trier of fact is free to believe or disbelieve all or any of the testimony" of a witness. Id., citing State v. Jackson, 10th Dist. No. 01AP-973, 2002- Ohio-1257. {¶ 36} In the present case, the trier of fact, in resolving conflicts, could have reasonably found that appellant willfully ignored the police officer's efforts to stop him. See Garrard at ¶ 41 (appellant's conviction not against manifest weight of evidence; reasonable inference that appellant acted willfully in failing to comply where, after officer activated cruiser lights, appellant did not stop but continued to speed up and prolong pursuit until later coming to stop on another street). On review, we cannot conclude the jury lost its way and created a manifest miscarriage of justice in convicting appellant, nor is No. 20AP-27 11 this "the exceptional case in which the evidence weighs heavily against the conviction." Martin at 175. {¶ 37} Based on the foregoing, appellant's two assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed. Judgment affirmed. SADLER and LUPER SCHUSTER, JJ., concur. __________________

2021-01-26 18:11:36.836444+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2021/2021-Ohio-179.pdf

[Cite as State v. Bowers, 2021-Ohio-179 .] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio, : Plaintiff-Appellee, : No. 19AP-759 v. : (C.P.C. No. 18CR-1026) Brandon M. Bowers, : (ACCELERATED CALENDAR) Defendant-Appellant. : D E C I S I O N Rendered on January 26, 2021 On brief: [G. Gary Tyack], Prosecuting Attorney, and Sarah V. Edwards, for appellee. On brief: Brandon M. Bowers, pro se. APPEAL from the Franklin County Court of Common Pleas BEATTY BLUNT, J. {¶ 1} Defendant-appellant, Brandon M. Bowers, appeals the decision of the Franklin County Court of Common Pleas denying his petition for postconviction relief. We affirm the trial court's judgment. I. FACTS AND PROCEDURAL HISTORY {¶ 2} Bowers was indicted on March 2, 2018, for first-degree felony Possession of Cocaine, second-degree felony Possession of Heroin, and two counts of third-degree felony Having Weapon Under Disability. Each of the possession charges had a one-year firearm specification attached to them, and as a result he faced 31 years of incarceration, 21 years of which would be mandatory. In plea negotiations, the state agreed to drop both gun  2 No. 19AP-759 specifications, to amend the heroin possession from a second-degree felony to a fifth- degree felony, and to amend one of the weapon under disability charges to an attempt. The plea agreement reduced Bowers' potential sentence to 16 and one half years incarceration, only 6 of which were mandatory. And the parties agreed to jointly recommended to the court that Bowers serve 10 years and 11 months. On May 20, 2019, Bowers entered a plea of guilty to the amended charges. The trial court accepted the plea, and its judgment entry states as follows: On May 20, 2019, the State of Ohio was represented by Assistant Prosecuting Attorneys, Maria Martinez-Beshears and Dan Stanley, and Defendant was represented by Attorney, Jennifer Baughman. Defendant, after being advised of all Crim. R. 11 rights, entered a plea of guilty to the stipulated lesser included offense of Count One of the Indictment, to wit: Possession of Cocaine without Specification, in violation of Section 2925.11 of the Revised Code, a Felony of the First Degree; guilty to the stipulated lesser included offense of Count Two of the Indictment, to wit: Possession of Heroin without Specification, in violation of Section 2925.11 of the Revised Code, a Felony of the Fifth Degree; guilty to Count Three of the Indictment, to wit: Having a Weapon While Under Disability, in violation of Section 2923.13 of the Revised Code, a Felony of the Third Degree; and guilty to the stipulated lesser included offense of Count Four of the Indictment, to wit: Attempted Having a Weapon While Under Disability, in violation of Section 2923.02 as it relates to Section 2923.13 of the Revised Code, a Felony of the Fourth Degree. Upon application of the Prosecuting Attorney and for good cause shown, it is ORDERED that a Nolle Prosequi be entered for the Specifications as to Counts One and Two of the Indictment. The Court found Defendant guilty of the charges to which the plea was entered. The court proceeded to sentence Bowers to the agreed term of 10 years, 11 months incarceration, 6 years of that sentence were mandatory, and Bowers was ordered to serve 5 years of post-release control. The trial court ordered the sentence to be served concurrently  3 No. 19AP-759 with the sentence imposed in Bowers' two other pending felony cases, and Bowers did not file a direct appeal. {¶ 3} Instead, on July 23, 2019, Bowers filed a petition for postconviction relief, asserting that the trial court's judgment convicting him of first-degree felony cocaine possession and fifth-degree felony heroin possession was void. Bowers essentially argued that the court's action in dismissing the firearm specifications made the conviction a nullity, because neither of the two possession charges were lesser-included offenses of the possession charges for which he had been indicted. On September 19, 2019, the trial denied the petition. The trial court found that Bowers' constitutional rights had not been violated and therefore there was no basis to overturn the conviction, and that res judicata barred his claims. This timely appeal followed, and Bowers asserts a single assignment of error: "The trial court abused its discretion in denying postconviction relief." II. STANDARD OF REVIEW {¶ 4} R.C. 2953.21(A)(1)(a) permits "[a]ny person who has been convicted of a criminal offense * * * and who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States * * * may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief." If no direct appeal is taken, the petition shall be filed no later than 365 days after the expiration of the time for filing the appeal. R.C. 2953.21 (A)(2). The postconviction relief process is not an appeal of the judgment, instead it is a "collateral civil attack on a criminal judgment." State v. Sidibeh, 10th Dist. 12AP-498, 2013-Ohio-2309 , ¶ 8, citing State v. Steffen, 70 Ohio St.3d 399 , 410 (1994). The purpose of the postconviction relief process is to permit a defendant to reach  4 No. 19AP-759 constitutional issues that are impossible to reach otherwise because the evidence supporting those issues is not contained in the trial court record. Id., quoting State v. Murphy, 10th Dist. 00AP-233 (Dec. 26, 2000). A trial court is not necessarily required to hold an evidentiary hearing to determine whether a defendant's constitutional rights have been violated. See State v. Jackson, 64 Ohio St.2d 107 , 110 (1980). Prior to granting a hearing on a petition for postconviction relief, the trial court must determine if substantive grounds for relief exist—specifically, whether the petition sets forth enough facts to support a claim of a constitutional issue. State v. Kapper, 5 Ohio St.3d 36 (1983). A trial court properly denies a postconviction relief without an evidentiary hearing, if a determination can be made from the "supporting affidavits, the documentary evidence, the files, and the records" that the petitioner failed to set forth "sufficient operative facts" to establish grounds for relief. State v. Calhoun, 86 Ohio St.3d 279 , 291 (1999). {¶ 5} Appellate courts are deferential to trial court decisions regarding postconviction relief. A reviewing court will not overrule the trial court's finding on a petition for postconviction relief if the decision is supported by " 'competent and credible evidence.' " Sidibeh at ¶ 7, quoting State v. Gondor, 112 Ohio St.3d 377 , 2006-Ohio-6679 , ¶ 58. And appellate courts should not overturn a trial court's denial of postconviction relief unless an abuse of discretion has occurred. Gondor at ¶ 60. An abuse of discretion occurs when a trial court's determination is "unreasonable, arbitrary, or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217 , 219 (1983). III. LAW AND ANALYSIS {¶ 6} Bowers' petition argues the trial court abused its discretion when denying his postconviction relief motion for two reasons. First, he contends that the dismissal of the one-year gun specifications attached to counts one and two of the indictment rendered his  5 No. 19AP-759 conviction of those charges "void ab initio" because it created new offenses that he had not been indicted for by a Grand Jury. Second, he argues that the trial court's entry finding him guilty of the "stipulated lesser-included offense" of first-degree cocaine possession renders its judgment void, as no such stipulation had been agreed to. Neither argument has merit. {¶ 7} Under the three-part test enunciated in State v. Deem, 40 Ohio St.3d 205 , 533 (1988) and State v. Evans, 122 Ohio St.3d 381 , 2009-Ohio-2974 , ¶ 26 "in determining whether an offense is a lesser included offense of another, a court shall consider whether one offense carries a greater penalty than the other, whether some element of the greater offense is not required to prove commission of the lesser offense, and whether the greater offense as statutorily defined cannot be committed without the lesser offense as statutorily defined also being committed." Id. {¶ 8} Count one, both as it was indicted by the Grand Jury and as Bowers was adjudged guilty by the trial court, alleged that Bowers committed the first-degree felony possession of cocaine. And in count two, Bowers was indicted for a second-degree felony heroin possession but pleaded to fifth-degree felony heroin possession. A defendant may be convicted of the originally-indicted offense or of a lesser-included offense, but the importance of the test to Bowers is that "the finding of guilty of a lesser included offense constitutes a finding of not guilty of the greater offense, even though the trial court does not so state * * *." State v. Rader, 55 Ohio App.3d 102 , 104-05 (1st Dist.1988), citing State ex rel. Leis v. Gusweiler, 65 Ohio St.2d 60 (1981), and State ex rel. Sawyer v. O'Connor, 54 Ohio St.2d 380 (1978). Bowers concedes fifth-degree heroin possession is a lesser-included offense of the indicted offense under Deem and Evans, but takes issue with the fact that the indictment contained a one-year gun specification attached to each count that were dismissed by the court.  6 No. 19AP-759 {¶ 9} Relying on State v. Ford, 128 Ohio St.3d 398 , 2011-Ohio-765 , ¶ 16, Bowers correctly observes that firearm specifications are not "offenses," but are merely "sentence enhancements." Bowers' essentially argues that gun specifications must be treated as additional elements of a new greater crime, and that removing a gun specification from an underlying offense of indictment renders it a "lesser" offense but not a "lesser-included" offense. He argues he was therefore improperly convicted and sentenced for "offenses" that were not lesser-included offenses of the offenses for which he was indicted under Deem and Evans, and that his convictions of those offenses are void. Moreover, based on Rader, Bowers argues that he was impliedly found not guilty of the "greater" offenses for which he had been indicted, and therefore his drug possession offenses must be vacated in their entirety. {¶ 10} While creative, Bowers' argument must fail, because Ford simply does not reach as far as he suggests. Ford holds that a firearm specification "is merely a sentencing provision that requires an enhanced penalty upon certain findings," (Emphasis added) Ford at ¶ 16, and therefore concludes that "the criminal offense of discharging a firearm at or into a habitation under R.C. 2923.161 and a firearm specification as defined in R.C. 2941.145 are not allied offenses of similar import as defined in R.C. 2941.25 * * *." (Emphasis added.) Id at ¶ 19. Ford simply does not speak to the question of lesser-included offenses. Nothing in the case requires firearm specifications to be considered as additional elements of a new and different offense. In fact, the analysis in Ford implicitly rejects his view. Ford is premised on the fact that a "firearm specification is contingent upon an underlying felony conviction," not that it is somehow an additional element to a crime: R.C. 2941.145 and 2929.14(D) do not contain a positive prohibition of conduct, as required by R.C. 2901.03(B). Instead, these provisions indicate that if a defendant is  7 No. 19AP-759 convicted of a felony offense and, during the commission of that offense, if the defendant displays, indicates possession of, or uses a firearm to facilitate the offense, the defendant's underlying felony sentence will be increased by three years. In other words, the statutes do not state that a defendant shall not use a firearm during the commission of a crime: they state that when a firearm is used, an additional penalty will be imposed. Id. at ¶ 16. Moreover, even if Ford is read to require application of a lesser-included offense analysis to this situation, the Deem/Evans test indicates that an offense with a gun specification attached is always a "greater" offense of which that offense standing alone is a "lesser-included." The crime of possession of drugs has a lesser penalty, fewer but all included elements, and is always of necessity committed when possession of the same drugs with an attached firearm specification is committed. Compare Evans at ¶ 26. Accordingly, insofar as Ford even applies to a lesser-included offenses analysis, there is nothing in it that requires treating conviction of an offense without a gun specification as void. {¶ 11} Bowers' second argument is equally unavailing. Bowers observes that the trial court's judgment entry incorrectly states that he pleaded guilty "to the stipulated lesser included offense of Count One of the Indictment, to wit: Possession of Cocaine without Specification, in violation of Section 2925.11 of the Revised Code, a Felony of the First Degree." Bowers' written guilty plea only uses the phrase "the stipulated lesser influenced [sic] offense" in relation to count two of the indictment, the heroin possession charge. But Bowers cannot identify any prejudice he suffered as a result of this surplus language being included in the judgment entry, or in fact any effect at all the surplus language had on his conviction, sentence, or the court's authority to act. {¶ 12} Accordingly, Bowers' argument that the court's judgment is void based on these arguments is misplaced. The Supreme Court of Ohio has held "[w]ithin the meaning of the [postconviction] statute, a judgment of conviction is void if rendered by a court  8 No. 19AP-759 having either no jurisdiction over the person of the defendant or no jurisdiction of the subject matter, i.e., jurisdiction to try the defendant for the crime for which he was convicted." State v. Perry, 10 Ohio St.2d 175 , 178 (1967). Bowers does not point to any evidence to show that the trial court lacked subject-matter jurisdiction or authority to hear the case in the court for the crime for which he was indicted or convicted, or that his constitutional rights were violated as a result of the trial court's inclusion of "stipulated lesser-included offense," after count one in the judgment entry. {¶ 13} Insofar as Bowers argues that his conviction was "voidable" because he was improperly found guilty of offenses for which he was not indicted or were not stipulated lesser-included offenses of the underlying offenses in the indictment. Consequently, he argues that the court's exercise of jurisdiction was erroneous, but that challenge must be raised on direct appeal. See State v. Payne, 114 Ohio St.3d 502 , 2007-Ohio-4642 , ¶ 28, quoting State v. Filiaggi, 86 Ohio St.3d 230 , 240 (1999) ("in those cases in which a trial court has jurisdiction but erroneous[ly] exercise[s] * * * jurisdiction, * * * the [sentence] * * * is not void," and the sentence can be set aside only if successfully challenged on direct appeal.") (Internal quotations and citations omitted.) {¶ 14} Bowers knowingly, voluntarily, and intelligently signed a valid plea agreement to the offenses for which he was convicted, and at no point was forced, coerced, or promised any leniency in exchange. The plea agreement correctly states the indicted offenses against Bowers, and the offenses for which he pled guilty. The court had the authority to dismiss the gun specifications and amend count two of the indictment. While the plea agreement for count one does not include any language indicating that Bowers was agreeing to a "stipulated lesser-included offense," that does not render the conviction as a  9 No. 19AP-759 whole voidable or void. Bowers was given an opportunity with the advice and help of counsel to address the error in the judgment entry. He did not do so. {¶ 15} For all these reasons, the trial court's decision denying Bowers' petition for postconviction relief without a hearing was not an abuse of discretion. We overrule his assignment of error and affirm the judgment of the trial court. Judgment affirmed. DORRIAN, P.J., concurs in judgment only. SADLER, J., concur.

2021-01-26 18:12:14.682543+00

http://www.pacourts.us/assets/opinions/Superior/out/J-A14032-20m - 104671795126278389.pdf

J-A14032-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 ROBERT G. WALTERS AND LOIS A. : IN THE SUPERIOR COURT OF WALTERS : PENNSYLVANIA : : v. : : : STANLEY E. MCILVEE, JR., AND : CHRISTINE M. MCILVEE, DECEASED : AND DALE R. HOWELL AND LISA L. : HOWELL; KENNETH S. DOBIS; : WILLIAM P. MCCAWLEY AND JOYCE : G. MCCAWLEY; AND LARRY : WALTERS AND CHRISTINE WALTERS : : : APPEAL OF: DALE R. HOWELL AND : LISA L. HOWELL : No. 1415 WDA 2019 Appeal from the Order Entered August 13, 2019 in the Court of Common Pleas of Potter County Civil Division at No(s): No. 6 of 2013 BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 26, 2021 Dale R. Howell (“Howell”) and Lisa L. Howell (collectively, “the Howells”) appeal from the Order denying their post-trial Motion seeking entry of judgment notwithstanding the verdict (“JNOV”), and a declaration that the J-A14032-20 Howells were bona fide purchasers of the lands at issue.1 We affirm. This appeal concerns oil and gas rights underlying a parcel of property in Harrison Township, Potter County (“the Property”). Robert G. Walters and Lois A. Walters (collectively, “the Walters”) purchased the property at issue in April 1999. In April 2003, the Walters entered into an agreement (the “Walters Sale Agreement”) to sell the Property to Stanley E. McIlvee, Jr. (“McIlvee”), and Christine M. McIlvee.2 The Walters Sale Agreement provided that the deed would contain a provision excepting and reserving the oil, gas, and mineral rights to the Walters (the “Walters Reservation”). However, despite the Walters Sale Agreement and subsequent Addendum, the eventual deed (the “Walters-McIlvee Deed”) did not contain the Walters Reservation, apparently due to a scrivener’s error. ____________________________________________ 1 The Howells purportedly appeal from the trial court’s Order denying their post-trial Motion. “An appeal to this Court can only lie from judgments entered subsequent to the trial court’s disposition of post-verdict motions, not from the order denying post-trial motions.” Fanning v. Davne, 795 A.2d 388 , 391 (Pa. Super. 2002). While there is no indication in the record that judgment was subsequently entered, we deem done that which ought to have been done. Johnston the Florist, Inc. v. TEDCO Constr. Corp., 657 A.2d 511 , 514-15 (Pa. Super. 1995) (en banc). Further, we may review an appeal in the absence of a properly entered judgment where, as here, “the order from which a party appeals was clearly intended to be a final pronouncement on the matters discussed ….” Id. As such, we will consider this appeal as being properly before this Court. 2 Christine McIlvee died in March 2007. However, because the chain of title for the parcels at issue occasionally refers to the McIlvees collectively, we will occasionally refer to the McIlvees as such. -2- J-A14032-20 In the years that followed, the McIlvees made four conveyances out of the property, retaining ownership of a portion of the parcel to themselves (the “McIlvee Property”). Relevantly to the instant appeal, in July 2003, the Howells executed an Agreement of Sale to purchase 60 acres from the McIlvees (“the Howell Property”), which was part of the original Property. The Agreement of Sale does not include any reference to the oil and gas rights underlying the Howell Property, but includes several undated, handwritten notations. The first notation states that the McIlvees will make various repairs and improvements to the Howell Property, and was initialed “DH” and “LH.” Under that notation is a second, handwritten notation that states, “Seller will disclose any knowledge or leases to mineral rights existing on property, [i]f all mineral rights are excluded buyer has option to declare contract null and void or choose to purchase as is.” This notation is also initialed by “DH” and “LH.” Under the second notation is a final, third notation, which states, “No mineral rights included in purchase[;] Timber rights are included in the purchase.” This notation is initialed by “SEM” and “CMM.” The executed deed does not contain a reference or reservation as to the oil and gas rights underlying the Howell Property. At some time in 2007, the McIlvees were contacted by a representative of Chesapeake Appalachia, LLC (“Chesapeake”), about executing an oil and gas lease as to the McIlvee Property. McIlvee indicated to Chesapeake that he did not own any of the oil, gas, and mineral rights underlying the McIlvee -3- J-A14032-20 Property. Several weeks after the initial meeting, Chesapeake informed McIlvee that it had researched the chain of title, and believed that McIlvee did, in fact, own the oil, gas, and mineral rights to the McIlvee Property. In accordance with this information, McIlvee proceeded to enter into an oil and gas lease with Chesapeake in September 2007. In 2011, the Walters met with their attorney to inquire as to whether the Walters Reservation would vest in their children upon their deaths. At this time, they discovered the issue related to the scrivener’s error in the Walters- McIlvee Deed, as well as the existence of the oil and gas lease that McIlvee had executed with Chesapeake. On January 9, 2013, the Walters filed a Complaint against the McIlvees, alleging that that the McIlvees unjustly enriched themselves when they executed the oil and gas lease with Chesapeake and collected lease payments, because they did not own the oil and gas rights. The Walters also sought reformation of the Walters-McIlvee Deed to reflect the Walters Reservation, as noted in the Walters Sale Agreement. Following a procedural history not relevant to the instant appeal, the Walters filed an Amended Complaint naming the Howells, as well as the remaining subsequent purchasers, as additional defendants. The Howells filed an Answer with New Matter, to which -4- J-A14032-20 the Walters filed a Reply.3 Following depositions of the involved parties, the Howells filed a Motion for summary judgment, and an amended Motion for summary judgment, which the trial court denied after argument. After a bench trial, the trial court issued a Statement of Facts, Discussion, and Order concluding, inter alia, that the Howells were not bona fide purchasers of the Howell Property with respect to the oil, gas, and mineral rights. The trial court also ordered reformation of the Walters-McIlvee Deed to include the Walters Reservation. The Howells filed a timely Motion for post- trial relief seeking JNOV, and a declaration that they were bona fide purchasers of the Howell Property. The trial court denied the Motion. The Howells filed a timely Notice of Appeal, and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal. The Howells raise the following issues for our review: [1.] Did the trial court err in finding that the Howells were not bona fide purchasers of the [P]roperty? [2.] Did the trial court err when it found that the term “mineral rights” in the [Agreement of Sale] was intended to encompass oil and gas rights as well as the mineral rights to the [P]roperty in violation of the Dunham Rule?[4] ____________________________________________ 3 One subsequent purchaser, Kenneth S. Dobis, filed an Answer with New Matter, and a Motion and amended Motion for summary judgment. The remaining subsequent purchasers did not file a response to the Walters’ Amended Complaint, nor are they involved in the instant appeal. 4 Dunham & Shortt v. Kirkpatrick, 101 Pa. 36 (Pa. 1882). -5- J-A14032-20 Brief for Appellants at 7 (footnote added).5 In reviewing a trial court’s decision denying a request for JNOV, “[our] standard of review … is the same as that for a trial court. Ferry v. Fisher, 709 A.2d 399 , 402 (Pa. Super. 1998). A JNOV can be entered upon two bases: (1) where the movant is entitled to judgment as a matter of law; and/or, (2) the evidence was such that no two reasonable minds could disagree that the verdict should have been rendered for the movant. When reviewing a trial court’s denial of a motion for JNOV, we must consider all of the evidence admitted to decide if there was sufficient competent evidence to sustain the verdict. In so doing, we must also view this evidence in the light most favorable to the verdict winner, giving the victorious party the benefit of every reasonable inference arising from the evidence and rejecting all unfavorable testimony and inference. Concerning any questions of law, our scope of review is plenary. Concerning questions of credibility and weight accorded the evidence at trial, we will not substitute our judgment for that of the finder of fact. If any basis exists upon which the court could have properly made its award, then we must affirm the trial court’s denial of the motion for JNOV. A JNOV should be entered only in a clear case. Wilson v. Transp. Ins. Co., 889 A.2d 563 , 569 (Pa. Super. 2005) (citations omitted). “We will reverse a trial court’s grant or denial of a [JNOV] only when we find an abuse of discretion or an error of law that controlled the outcome of the case.” Mitchell v. Moore, 729 A.2d 1200 , 1203 (Pa. Super. 1999). ____________________________________________ 5 We note that the Argument section of Howells’ brief is separated into three distinct arguments, but contains only two questions in the Statement of Questions Involved. However, we decline to find waiver as to the additional argument, as the questions posed in each argument section are “fairly suggested” by the Howells’ Statement of Questions Involved. See Pa.R.A.P. 2116(a) (stating that “[n]o question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.”). -6- J-A14032-20 The Howells argue that the trial court abused its discretion when it determined that the Howells were not bona fide purchasers of the Howell Property. Brief for Appellant at 16. In support of this contention, the Howells claim that they did not have actual or constructive notice of the existence of the Walters Reservation. Id. at 16-18. Specifically, the Howells argue that the trial court improperly determined that the notations made on the Agreement of Sale gave the Howells notice that the “mineral rights” were not included with the Property. Id. at 18. However, the Howells assert that such a reservation, to the extent that it exists, would not include oil and gas rights under Pennsylvania law. Id. at 18-21. The Howells also argue that the Walters failed to meet their burden of proof regarding their actual or constructive notice of the Walters Reservation, because the only evidence that existed of the McIlvees informing the Howells of the Walters Reservation was disputed. Id. at 22-23. In order for a party to qualify as a bona fide purchaser, the subsequent buyer must be without notice of the prior equitable interests of others. If the subsequent purchaser has notice of the first agreement of sale or deed, he has no protection as a bona fide purchaser and his title is subject to the interest vested in the first purchaser. Either actual or constructive notice is sufficient to prevent the subsequent purchaser from acquiring the status of a bona fide purchaser. Because constructive notice is not limited to instruments of record, a subsequent purchaser may be bound by constructive notice of a prior unrecorded agreement. This is true because the subsequent purchaser could have learned of facts that may affect his title by inquiry of persons in possession or others who the purchaser reasonably believes know such facts. -7- J-A14032-20 Long John Silver’s, Inc. v. Fiore, 386 A.2d 569 , 572-73 (Pa. Super. 1978) (citations omitted). Mindful of our standard of review, and viewing the evidence in the light most favorable to the Walters as verdict winners, we discern no abuse of discretion or error of law by the trial court. In his deposition, McIlvee testified that, although he could not recall the exact date of his correspondence with the Howells, he informed the Howells that they would not be receiving the oil and gas rights to the Howell Property. McIlvee Deposition, 4/16/18, at 14. McIlvee expressed his belief that the “mineral rights” referenced in the Agreement of Sale included gas rights, and that the Howells were of the same belief. Id. McIlvee testified that the parties discussed the oil and gas rights, and that the parties would not have included the notations about mineral rights in the Agreement of Sale if they had not discussed those rights in negotiating the Agreement of Sale. Id. at 14-15. Howell, in his deposition testimony, disputed that the parties had discussed oil, gas, or mineral rights with McIlvee prior to signing the Agreement of Sale. Howell Deposition, 6/1/17, at 6. Howell additionally stated that McIlvee never informed him of the Walters Reservation, and that his understanding was that the mineral rights were included with the Howell Property. Id. at 7-8. After considering the parties’ testimony, the trial court found McIlvee’s testimony to be credible, and the testimony of Howell to be not credible. Trial -8- J-A14032-20 Court Opinion, 3/10/19, at 13. We may not reweigh this evidence, and are bound by the trial court’s credibility determinations. Wilson, supra. Further, the trial court made the reasonable inference, based on the evidence before it, that the parties likely discussed oil and gas rights because McIlvee was aware of the existence of the Walters Reservation. Trial Court Opinion, 3/10/19, at 12-13. We are required, under our standard of review, to give the Walters, as the verdict winners, the benefit of those reasonable inferences. Wilson, supra. Thus, the evidence of record supports the trial court’s finding that “the handwritten language contained in the [] Agreement [of] Sale, taken together with [] McIlvee’s credible testimony in this regard, evidences that the Howell[]s had notice of [the Walters Reservation] prior to their transaction with [the McIlvees].” Trial Court Opinion, 3/10/19, at 13. Accordingly, we must affirm the trial court’s verdict that the Howells were not bona fide purchasers of the Howell Property. Long John Silver’s, supra. In their second claim, the Howells argue that the trial court erred in determining that “mineral rights,” as included on the Agreement of Sale, included the oil and gas rights to the Howell Property. Brief for Appellant at 24. The Howells contend that the trial court’s conclusion was contrary to the presumption, as set forth in the “Dunham Rule,” that the term “mineral rights” does not include oil and gas rights. Id. at 24-25. According to the Howells, McIlvee’s deposition testimony that he had advised the Howells of -9- J-A14032-20 the Walters Reservation was not enough to overcome the clear and convincing standard required by the Dunham Rule. Id. at 25. As our Supreme Court has explained: The Dunham Rule is clear, dating back to Gibson [v. Tyson, 5 Watts 34 (Pa. 1836)], that the common, layperson understanding of what is and is not a mineral is the only acceptable construction of a private deed. Notwithstanding different interpretations proffered by other jurisdictions, the rule in Pennsylvania is that natural gas and oil simply are not minerals because they are not of a metallic nature, as the common person would understand minerals. Gibson, 5 Watts at 41-42; see also Dunham, 101 Pa. at 44. The Highland [v. Commonwealth, 161 A.2d 390 (Pa. 1960),] decision made clear that the party advocating for the inclusion of natural gas within the deed reservation bears the burden of pleading and proving by clear and convincing evidence that the intent of the parties who executed the reservation was to include natural gas. [Id.] at 398-99. Critically, however, such intention may only be shown through parol evidence that indicates the intent of the parties at the time the deed was executed[.] Butler v. Charles Powers Estate ex rel. Warren, 65 A.3d 885 , 898 (Pa. 2013) (emphasis added). “Clear and convincing evidence” requires “evidence that is so clear, direct, weighty, and convincing as to enable the [fact finder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” Rohm and Haas Co. v. Continental Cas. Co., 781 A.2d 1172 , 1179 (Pa. 2001) (citation and internal quotation marks omitted). Again mindful of our standard of review, and reviewing in the light most favorable to the Walters as verdict winners, we discern no abuse of discretion or error of law by the trial court. The trial court, in relying on the testimony and evidence set forth above, concluded that the term “minerals,” as set forth - 10 - J-A14032-20 in the Agreement of Sale, was intended to include oil and gas. Trial Court Opinion, 3/10/19, at 13. For the same reasons, we may not disturb those findings of fact. Wilson, supra. Further, the trial court made the reasonable, evidence-based inference that the extensive history of oil and gas development in the region, compared to the sparse history and value of mineral extraction, made it unlikely that the parties would discuss “minerals” and not oil and gas.6 Trial Court Opinion, 3/10/19, at 12-13. Thus, the trial court’s determination that the Walters had rebutted the presumption that “minerals” did not include oil and gas, is supported by clear and convincing evidence. See Butler, 65 A.3d at 897-98 (concluding that natural gas was not included in a reservation of “minerals and petroleum oils” when insufficient evidence existed to indicate that the parties intended to include natural gas); see also Vosburg v. NBC Seventh Realty Corp., 122 A.3d 393 , 401-02 (Pa. Super. 2015) (holding that a reservation of “all coal and other mineral beneath the surface,” with the right to remove such minerals by “subterranean mining” did not also reserve the right to excavate rock from just beneath the ____________________________________________ 6 We also note that the Title Report for the Howell Property, prepared by the Howells as part of the transaction and delivered to the Howells prior to the execution of the deed, does not disclose any history of mineral leases affecting the parcel. However, the report specifically notes three different oil and gas leases executed on the parcel between 1952 and 2003, including an oil and gas lease executed by the Walters in February 2003, less than one year prior to the Howells’ purchase of the property from McIlvee. See Title Report, 10/16/03, at 3. - 11 - J-A14032-20 surface, when no evidence existed to indicate that such rocks were contemplated in the reservation). Because the Howells failed to demonstrate that the evidence entitles them to a judgment as a matter of law, we must affirm the trial court’s Order. Wilson, supra. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 1/26/2021 - 12 -

2021-01-26 18:12:15.085962+00

http://www.pacourts.us/assets/opinions/Superior/out/J-S56001-20m - 104671847126280450.pdf

J-S56001-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 M.B. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : C.A. : No. 1687 EDA 2020 Appeal from the Order Entered August 25, 2020 In the Court of Common Pleas of Bucks County Civil Division at No(s): No. 2009-60957 BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.* MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 26, 2021 M.B. (Father) appeals from the custody order, entered on August 25, 2020, by the Court of Common Pleas of Bucks County that directed that L.A., born in September of 2008, would attend school for the 2020/2021 school year at St. Jude Catholic School. After review, we quash. Father and C.A. (Mother), who were never married to each other, share legal custody of L.A. Mother has primary physical custody of L.A. and Father has partial physical custody of L.A. every other weekend. In the trial court’s opinion filed in response to Father’s appeal, the court provided the following: On August 4, 2020, Mother filed an Emergency Petition to Modify Custody as it relates to choosing a school for L.A. The parties participated in a Custody Conference with one of the [c]ourt employed Child Custody Conference Officers. A portion of the Conference Officer’s report, a copy of which is filed of record and is attached hereto as Exhibit A, states: ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-S56001-20 []Mother wants to enroll the parties’ son at St. Jude Catholic School for the 2020/2021 academic year. Last school year, he attended Butler Elementary (Central Bucks School District), and was slated to attend Unami Middle School this school year. On August 10th, Central Bucks School District announced that it will now offer only on-line classes. Before that, it had planned a hybrid system of both virtual and in- person learning. The Catholic school has announced it is offering five days of in-person classes. Mother claims that their son struggled tremendously with on- line teaching - he lacked focus and had difficulty with the workload and the independent aspect of distance learning. She adamantly claims that he needs to be in a classroom setting, from both an academic and mental health standpoint. Mother says their son’s grades are not an accurate barometer of his struggles; the school went to a ‘pass/fail’ system when it went virtual and, although he ‘passed’ all his classes, the teacher’s comments regarding his work were concerning. Mother says that Father is not involved with child’s school, e.g., parent-teacher conferences, school events, nor does he assist him with homework, and so Father is unaware of the level of difficulty their son had with virtual school. Moreover, Mother thinks that it would be extremely difficult for either parent to monitor and assist their son with on-line classes during the weekdays. Mother and son visited St. Jude’s on July 17th. She then notified Father via email on July 22nd about her concerns with virtual education and wanting their son to return to St. Jude’s (where he had attended kindergarten). Mother claims that their son had a positive experience when at St. Jude’s, and wants to return. Mother secured a place for their child at St. Jude’s but did not remove him from Unami public. There is now a 60-child waitlist at St. Jude’s, but because Mother inquired earlier, the school is holding a spot for the child. Mother is not sure how long that spot will be held, or if it will be open after school begins (September 1st). She says that she will pay all costs of their child attending St. Jude, and that changing schools will not affect Father’s custodial time with their son in any way. -2- J-S56001-20 Father opposes sending their child to St. Jude. He says he is not Catholic (he does not attend church nor ascribe to any religion), and he does not want his son educated at a Catholic school. He says that the child has not been to church or CCD in quite some time. He also sees public school as providing the superior education. Father questions the safety for any child to attend in-person classes, and believes distance learning is preferable. He asserts that their child’s troubles with distance learning stemmed from a lack of a disciplined schedule - the child stayed up too late and was tired and easily distracted when school was ‘in session’. He thinks their son should stay in the public school system where he has been since 1st grade, where he is comfortable attending, and where all his friends go to school. While at the Custody Conference on August 17, 2020[,] the parties were unable to come to an agreement as to which school L.A. should attend. They requested the matter be scheduled for a hearing. Due to the immediacy of the impending school year, we held a conference in chambers on August 18, 2020[,] in an attempt to resolve the dispute between the parties. During said conference[,] both sides stated their stance on the matter and reasoning, and we gave our opinion that L.A. should attend in- person school at St. Jude Catholic School. On August 20, 2020[,] counsel for Mother submitted to us what was represented to be an Agreed[-]Upon Proposed Order. Upon review, we signed the Proposed Order on August 21, 2020, which ultimately allowed Mother to enroll L.A. in Catholic school for the 2020-2021 school year. It was our intent that the Proposed Order be entered as an Interim Order. We have since learned that while Father agreed with the form of the Order, he did not agree with the overall determination. On September 4, 2020[,] Father filed a Notice of Appeal. Trial Court Opinion (TCO), 9/28/20, at 1-3. Father’s appeal was timely filed and was accompanied by a concise statement of errors complained of on appeal. His brief contains the following four issues: -3- J-S56001-20 1. Is the [t]rial [c]ourt’s August 21, 2020 order appealable as a final order? 2. Does changing a child’s school without conducting an evidentiary hearing over the objection of a party violate the party’s right to due process? 3. May a child’s school be changed without first establishing a record to support that the change would serve the child’s best interests? 4. Is it proper to rely on the report of a custody conference officer[,] which was not yet made available to the parties? Father’s brief at 4-5. We begin by noting the trial court’s reasoning underlying its determination that the order giving rise to this appeal should be considered interlocutory, not final, and that therefore the appeal should be quashed. Specifically, the court stated: Here, the Order entered on August 21, 2020[,] was fully intended to be an interim order. However, the form of the Order was submitted by the parties and ultimately did not reflect this intent. Appeal at this point is premature. Due to the narrow time constraints in which we had to come to a determination, this Order was entered before we could hold a full hearing on the merits. It was our intention to conduct a formal hearing at the first opportunity after the Order was entered[,] but Father’s appeal has stalled our ability to do so. This Order specifically states that it shall remain in full force and effect only until further Order of the [c]ourt. Further, this Order only comes to a determination for L.A.’s schooling for one specific school year. TCO at 5. In K.T.R. v. L.S., 238 A.3d 478 (Pa. Super. 2020), this Court quashed an appeal from an order in a child custody action, setting forth the following: It is well settled that, “[a]n appeal lies only from a final order, unless permitted by rule or statute.” Stewart v. Foxworth, 65 -4- J-S56001- 20 A.3d 468 , 471 (Pa. Super. 2013). Generally, a final order is one that disposes of all claims and all parties. See Pa.R.A.P. 341(b). “[A] custody order will be considered final and appealable only if it is both: (1) entered after the court has completed its hearings on the merits; and (2) intended by the court to constitute a complete resolution of the custody claims pending between the parties.” G.B. v. M.M.B., 448 Pa. Super. 133 , 670 A.2d 714 , 720 (Pa. Super. 1996). Here, at the time the court granted Father’s request for reconsideration, it had not yet completed its hearings. Further, it is quite clear the court did not intend the May 24, 2019 order would completely resolve the parties’ custody dispute. Id. Id. at 482. We are compelled to quash this appeal due to the fact that, at the time the court’s order was issued, no hearings on the merits had been held. See id. The court’s explanation that it meant for the order to be an interim order, although not reflected in the order itself, additionally supports a conclusion that no final order exists from which Father could appeal. We further note that the order only encompasses the present school year, which is more than half-way completed at the present time. Therefore, we agree with the trial court that the order is not a final order and that the appeal is premature and must be quashed.1 Appeal quashed. ____________________________________________ 1 In light of this Court’s determination, we have not directly responded to Father’s specific issues. -5- J-S56001-20 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 1/26/2021 -6-

2021-01-26 18:12:15.333417+00

http://www.pacourts.us/assets/opinions/Superior/out/J-A24043-20m - 104671748126275797.pdf

J-A24043-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: B.E. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : APPEAL OF: B.E. : No. 1463 WDA 2019 Appeal from the Order Dated August 27, 2019 in the Court of Common Pleas of Allegheny County Juvenile Division at No(s): CP-02-JV-0000685-2019 BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 26, 2021 B.E. appeals from the dispositional Order entered following his adjudication of delinquency for simple assault.1 We affirm. The juvenile court summarized the facts underlying this appeal as follows: On April 10, 2019, the Pittsburgh [Bureau of Police] filed a Written Allegation, asserting that B.E. assaulted a nurse at the Western Psychiatric Hospital [(“WPH”)] … on March 26, 2019. According to the nurse who was assaulted, an eyewitness, and hospital video, B.E. was chasing the victim around in the hospital attempting to obtain her hospital keys. [B.E.] is then observed slapping and punching the victim on the right side of her face. The victim went to UPMC Presbyterian Hospital for emergency treatment due to her injuries. It was then determined that B.E. had broken the nurse’s nose. After the initial investigation, it was confirmed that the nasal fracture required surgery for repair. ____________________________________________ 1 See 18 Pa.C.S.A. § 2701(a)(1). J-A24043-20 Juvenile Court Opinion, 2/7/20, at 1 (unnumbered) (footnote omitted). B.E. was 14 years old at the time of the incident. On June 4, 2019, the Commonwealth filed a Delinquency Petition, charging B.E. with the delinquent act of aggravated assault, a first-degree felony.2 The juvenile court held a pre-hearing conference on July 2, 2019. At that time, defense counsel requested that B.E. undergo a competency evaluation and a psychiatric evaluation. The juvenile court continued the matter pending the evaluations. On August 27, 2019, the juvenile court conducted an adjudicatory hearing. At that time, the parties entered into a negotiated settlement. The Commonwealth agreed to amend the charge, and B.E. completed an Admissions Form, in which he admitted to committing the delinquent act of simple assault, a second-degree misdemeanor. Further, the Commonwealth and B.E. agreed to determine the appropriate amount of restitution at a later date, when more information became available. See N.T., 8/27/19, at 2-3. B.E.’s mother (“S.E.”) and his probation officer, Matthew Filipovic (“P.O. Filipovic”), also testified during the adjudicatory hearing. At the conclusion of the hearing, the juvenile court accepted B.E.’s admission, and determined that B.E. was in need of treatment, supervision or rehabilitation. ____________________________________________ 2 See 18 Pa.C.S.A. § 2702(a)(1). -2- J-A24043-20 The juvenile court adjudicated B.E. delinquent, and placed him on probation “until further order of this [c]ourt, under and subject to the rules and regulations of the County Juvenile Probation Office.” Dispositional Hearing Order, 8/27/19, at 1. The juvenile court also ordered B.E. to pay standard court costs, complete 25 hours of community service, continue with mental health treatment, attend school daily and on time, and have no inappropriate contact with the victim. B.E. filed a timely Notice of Appeal from the Dispositional Order.3 Following a separate restitution hearing on October 1, 2019, the juvenile court ordered B.E. to pay restitution to the victim in the amount of $500.38.4 On October 19, 2019, the juvenile court ordered B.E. to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal within 21 days ____________________________________________ 3 “In juvenile proceedings, the final order from which a direct appeal may be taken is the order of disposition, entered after the juvenile is adjudicated delinquent.” In Interest of P.S., 158 A.3d 643 , 649 (Pa. Super. 2017) (citation, quotation marks and brackets omitted); see also In re J.G., 45 A.3d 1118 , 1121-23 (Pa. Super. 2012) (concluding that the juvenile court had authority to issue a restitution order after it had entered its dispositional order, as nothing in the Juvenile Act requires a court to order restitution within 30 days of entry of a dispositional order; nothing in the Juvenile Act prevents a court from scheduling restitution review after information becomes available; and the juvenile was aware that the Commonwealth sought restitution at the time he was adjudicated delinquent). 4B.E. subsequently filed a Motion for Reconsideration, challenging the amount of restitution on the basis that many of the victim’s expenses had been covered by worker’s compensation. The juvenile court scheduled a hearing on the Motion for Reconsideration for February 5, 2020. The certified record contains no additional information concerning this hearing. The amount of restitution is not at issue in this appeal. -3- J-A24043-20 of the date the Order was entered on the docket. B.E.’s counsel subsequently filed a Petition for Extension of Time to file a concise statement, which the juvenile court denied on January 3, 2020. On January 14, 2020, after receiving notice from this Court that the certified record for this case was overdue, the juvenile court filed a Statement in Lieu of Opinion, stating that it was unable to respond to B.E.’s Notice of Appeal, because B.E. had not filed a concise statement. B.E. filed with this Court a Petition to Remand, explaining that the juvenile court did not formally rule on counsel’s Petition for Extension of Time until approximately two months after it was filed. B.E. therefore requested that this Court remand the case to the juvenile court for the filing of a concise statement, nunc pro tunc. On January 23, 2020, this Court entered an Order remanding B.E.’s case to allow B.E. to file a nunc pro tunc Pa.R.A.P. 1925(b) concise statement, and for the juvenile court to file an opinion. Both B.E. and the juvenile court complied. On appeal, B.E. raises the following issue for our review: “Whether the evidence was insufficient as a matter of law to find that B.E. was in need of treatment, supervision, and rehabilitation through the juvenile court system, and, therefore, to adjudicate B.E. delinquent?” Brief for Appellant at 7. B.E. claims that he was not in need of treatment, supervision, or rehabilitation through the juvenile court system. Id. at 19. B.E. asserts that the juvenile court failed to make a finding that he requires treatment, supervision or rehabilitation. Id. at 20-21. Additionally, B.E. argues that the -4- J-A24043-20 juvenile court did not conduct an oral colloquy of B.E. regarding his admission until after it had determined that B.E. was delinquent, and that the colloquy was defective. Id. at 23-24. Further, B.E. argues, “the juvenile court is not required to determine that the child is in need of supervision or rehabilitation simply because the case involves restitution.” Id. at 28.5 Initially, for context, we reference the stated purpose of the Juvenile Act: Consistent with the protection of the public interest, to provide for children committing delinquent acts programs of supervision, care and rehabilitation which provide balanced attention to the protection of the community, the imposition of accountability for offenses committed and the development of competencies to enable children to become responsible and productive members of the community. 42 Pa.C.S.A. § 6301(b)(2). “This section evidences the Legislature’s clear intent to protect the community while rehabilitating and reforming juvenile delinquents.” In re B.T.C., 868 A.2d 1203 , 1204 (Pa. Super. 2005) (citation and quotation marks omitted). For further context, before adjudicating a child delinquent and entering a dispositional order, a juvenile court must first make two distinct findings. “Before entering an adjudication of delinquency, the Juvenile Act requires a juvenile court to find that a child has committed a delinquent act and that the ____________________________________________ 5 Though B.E. purports to challenge the sufficiency of the evidence, B.E. does not argue that the evidence fails to support an adjudication of delinquency for simple assault. Rather, his claim is properly characterized as a challenge to the juvenile court’s exercise of discretion in making the necessary findings. -5- J-A24043-20 child is in need of treatment, supervision, or rehabilitation.” In Interest of N.C., 171 A.2d 275 , 280 (Pa. Super. 2017) (citation omitted; emphasis in original); see also 42 Pa.C.S.A. § 6302 (defining a “delinquent child” as “[a] child ten years of age or older whom the court has found to have committed a delinquent act and is in need of treatment, supervision or rehabilitation.”). B.E.’s claim challenges both steps of the process for adjudicating a child delinquent. The portion of B.E.’s argument challenging the adequacy of his admission colloquy pertains to the first step of the process, i.e., the finding that the child committed a delinquent act. B.E. did not preserve this claim in his Pa.R.A.P. 1925(b) Concise Statement, or in his Statement of Questions Involved; rather, B.E. only preserved a challenge to the second required finding. Accordingly, this portion of B.E.’s argument is waived. See Pa.R.A.P. 1925(b)(4)(vii) (providing that “[i]ssues not included in the Statement … are waived.”); Commonwealth v. Scott, 952 A.2d 1190 , 1191 (Pa. Super. 2008) (stating that “waiver automatically applies … if an issue is not included in the Rule 1925(b) statement….”); see also Pa.R.A.P. 2116(a) (providing that “[n]o question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.”); Pa.R.A.P. 302(a) (providing that “[i]ssues not raised in the trial court are waived and cannot be raised for the first time on appeal.”). Thus, we address only B.E.’s argument that the juvenile court abused its discretion in determining that he is in need of treatment, supervision, or rehabilitation through the juvenile court. -6- J-A24043-20 “The Juvenile Act grants broad discretion to juvenile courts, and we will not disturb the lower court’s disposition absent a manifest abuse of discretion.” In Interest of N.C., 171 A.3d at 280. A determination that a child has committed a delinquent act does not, on its own, warrant an adjudication of delinquency. After determining that a juvenile has committed a delinquent act, the court shall then hear evidence “as to whether the child is in need of treatment, supervision or rehabilitation, as established by a preponderance of the evidence, and make and file its own findings thereon.” 42 Pa.C.S.[A.] § 6341(b). Interest of C.B., 2020 PA Super 265 , at *3 (Pa. Super. 2020) (footnotes and some citations, quotation marks, and brackets omitted). Regarding dispositional hearings, section 6341 provides, in relevant part, as follows: If the court finds on proof beyond a reasonable doubt that the child committed the acts by reason of which he is alleged to be delinquent it shall enter such finding on the record and shall specify the particular offenses, including the grading and counts thereof which the child is found to have committed. The court shall then proceed immediately or at a postponed hearing, which shall occur not later than 20 days after such finding if the child is in detention or not more than 60 days after such finding if the child is not in detention, to hear evidence as to whether the child is in need of treatment, supervision or rehabilitation, as established by a preponderance of the evidence, and to make and file its findings thereon. This time limitation may only be extended pursuant to the agreement of the child and the attorney for the Commonwealth. The court’s failure to comply with the time limitations stated in this section shall not be grounds for discharging the child or dismissing the proceeding. In the absence of evidence to the contrary, evidence of the commission of acts which constitute a felony shall be sufficient to sustain a finding that the child is in need of treatment, supervision or rehabilitation. If the court finds that the child is not in need of treatment, supervision or rehabilitation it shall dismiss -7- J-A24043-20 the proceeding and discharge the child from any detention or other restriction theretofore ordered. 42 Pa.C.S.A. § 6341(b) (emphasis added).6 Section 6341 also provides as follows regarding the evidence a court may receive: (d) Evidence on issue of disposition.-- (1)(i) In disposition hearings under subsection[] (b) … all evidence helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition. (ii) Subparagraph (i) includes any screening and assessment examinations ordered by the court to aid in disposition, even though no statements or admissions made during the course thereof may be admitted into evidence against the child on the issue of whether the child committed a delinquent act. (2) The parties or their counsel shall be afforded an opportunity to examine and controvert written reports so received and to cross-examine individuals making the reports. Sources of information given in confidence need not be disclosed. Id. § 6341(d). During the adjudicatory hearing, P.O. Filipovic requested that the juvenile court place B.E. on probation, and order 25 hours of community service. N.T., 8/27/19, at 3. P.O. Filipovic indicated that he has a good relationship with the family, based on his past work with them, and that he would continue to work with the family as directed. Id. at 4. P.O. Filipovic ____________________________________________ 6The presumption set forth in section 6341(b) does not apply because B.E. entered an admission to the delinquent act of simple assault, a second-degree misdemeanor. -8- J-A24043-20 testified that B.E. had started school, and was receiving services through Holy Family Institute. Id. P.O. Filipovic stated that, at that time, B.E. was receiving psychiatric care through Probation. Id. at 5. Additionally, P.O. Filipovic stated his understanding that, on the date of the incident, B.E was at WPH for medication adjustments. Id. at 4. S.E. testified as follows regarding the reason B.E. was at WPH: [Defense Counsel]: And why was he -- why did you have him at [WPH]? [S.E.]: That day he was at school, they 302’d[7] him to -- (unintelligible) -- committing suicide and was looking for scissors, and they took him down there and then we decided to keep him, plus he was off a couple of his medications. We figured since he’s there, get his medications readjusted. [Defense Counsel]: So he got his medication adjusted while he was there? [S.E.]: Yes. [Defense Counsel]: And he was discharged from [WPH]? [S.E.]: Yeah. He was there for two weeks. Id. at 6-7 (footnote added). S.E. also testified that, at that time, B.E. was receiving psychiatric care through Wesley Family Services, and that B.E. has been compliant with his medications. Id. at 7. S.E. stated that B.E. had started school at Holy Family, where he has an individualized education plan, and that Holy Family offers emotional and behavior support. Id. ____________________________________________ 7Section 302 of the Mental Health Procedures Act provides for an involuntary emergency examination and treatment, for a period not to exceed 120 hours. See 50 P.S. § 7302. -9- J-A24043-20 The juvenile court then heard arguments from both parties. B.E.’s counsel argued that B.E. was not in need of further treatment, as he was compliant with his medication, and he receives the services he needs through Wesley Family Services. Id. at 8. B.E.’s counsel also highlighted that P.O. Filipovic did not recommend additional services. Id. at 9; see also id. (wherein B.E.’s counsel stated, “The only thing that Probation is offering is community service and pay court fees. [B.E.] does not need any additional services. They’re not even recommending any additional services be put in place.”). In response, the Commonwealth stated, Judge, we have an admission. I mean, clearly, there are injuries. [B.E.] has a history of aggression that has culminated in his admission to the simple assault today. The victim is in compliance with the negotiated settlement. Her main concern is that [B.E.] gets treatment and that she receive restitution in this matter. Id. at 9. Thereafter, the juvenile court stated as follows: In regard to the matter concerning [B.E.]—first of all, we should be aware that this was not the first time he’s been in court. There’s no question that he needs further court supervision and/or treatment. [B.E.’s] actually in some type of treatment now, so when we look at the adjudication phase, it doesn’t mean that he needs more treatment, just that he needs some treatment, which obviously he does. There’s been no argument or any request that [B.E.] is incapable of assisting his [c]ounsel in regard to this matter, so in regard to his competency, that’s not part of this issue here today. I’m in agreement with Probation, that [B.E.] does need further [c]ourt supervision and/or treatment. Therefore, he is adjudicated delinquent in regard to the [P]etition … of simple assault. - 10 - J-A24043-20 [B.E.] is to be placed on probation at this time. Restitution remains open, and this [c]ourt will set a court date in regard to such costs, and he is to have no inappropriate contact with any nurses or doctors there at Wesley Spectrum. [B.E.] will also complete 25 hours of community service. [B.E. is] also required to attend school each and every day as well as all classes while there. Any questions? He will also continue with his mental health treatment, [and] will follow all recommendations in regard to any meds as well. Id. at 9-11 (emphasis added); see also Juvenile Court Opinion, 2/7/20, at 3- 5 (unnumbered) (summarizing the above testimony, and referencing its on- the-record explanation for its decision).8 We discern no manifest abuse of discretion in the juvenile court’s finding that B.E. is in need of treatment, supervision and rehabilitation, and the record supports the juvenile court’s finding in this regard. The juvenile court heard arguments from both counsel, as well as the testimony of P.O. Filipovic and S.E. Significantly, P.O. Filipovic, who had worked with B.E.’s family before, testified as to his belief that B.E. should be placed on probation. See N.T., 8/27/19, at 3-4. Cf. In Interest of N.C., 171 A.3d at 283-84, 286-87 (concluding that the juvenile court abused its discretion in finding that child ____________________________________________ 8 We observe that the certified record contains Pre-Disposition Reports, completed by P.O. Filipovic, filed June 26, 2019, and August 16, 2019. Additionally, the juvenile court ordered B.E. to under competency and psychiatric evaluations prior to the adjudicatory hearing. The competency and psychiatric evaluation reports are not included in the certified record, nor did the juvenile court specifically reference their contents during the adjudicatory hearing. - 11 - J-A24043-20 was in need of treatment, supervision or rehabilitation, where court primarily heard arguments from both counsel; the Commonwealth did not introduce evidence; and the court’s determination was based on speculation). Moreover, the juvenile court’s disposition was “consistent with the protection of the public interest and best suited to the child’s treatment, supervision, rehabilitation and welfare….” 42 Pa.C.S.A. § 6352 (authorizing juvenile courts to impose, inter alia, probationary terms and restitution in dispositions of delinquent children). Because we discern no manifest abuse of the juvenile court’s discretion, we affirm the juvenile court’s dispositional Order. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 1/26/2021 - 12 -

2021-01-26 18:12:15.646202+00

http://www.pacourts.us/assets/opinions/Superior/out/J-A26016-20o - 104671798126278603.pdf

J-A26016-20 2021 PA Super 13 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSEPH WILLIAMS : : Appellant : No. 1824 EDA 2019 Appeal from the Judgment of Sentence Entered May 3, 2019 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0004366-2018 BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.* OPINION BY LAZARUS, J.: FILED JANUARY 26, 2021 Joseph Williams appeals from the judgment of sentence, entered in the Court of Common Pleas of Bucks County, following his convictions by a jury of two counts of first-degree murder1 and one count each of criminal attempt to commit homicide,2 firearms not to be carried without a license,3 recklessly ____________________________________________ * Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S.A. § 2501(a). 2 18 Pa.C.S.A. § 901. 3 18 Pa.C.S.A. § 6106(a)(1). J-A26016-20 endangering another person (REAP),4 possessing an instrument of crime (PIC),5 and tampering with or fabricating physical evidence.6 Williams’ convictions stem from his role in the shooting deaths of Tommy Ballard and Zyisean McDuffie outside of April Coleman’s home, 914 Elmhurst Avenue, in Bristol, Pennsylvania, on May 4, 2018. On that date, Coleman hosted a party for her two children who planned to attend their high school prom later that evening. Several family friends were present, including Williams, Gary Goddard, Jr.,7 Tajon Skelton, Rayshaun James, and Sincere McNeil. These individuals were all gathered around Coleman’s Chrysler Pacifica, which was parked on her front lawn area. At one point, James and Williams walked away together—outside the view of area pole cameras—so that James could discreetly give Williams a firearm, which Williams placed into his waistband. See N.T. Jury Trial, 3/12/19, at 178-80. Shortly thereafter, McDuffie arrived at the Coleman residence, approached the group at the Chrysler Pacifica, and shook hands only with Williams. Williams then asked ____________________________________________ 4 18 Pa.C.S.A. § 2705. 5 18 Pa.C.S.A. § 907(a). 6 18 Pa.C.S.A. § 4910. 7At trial, Gary Nathaniel Goddard, Jr., was sometimes referred to as “Static” or “Little Gary.” For clarity, we refer to him exclusively as “Goddard, Jr.” Goddard, Jr., is the son of Gary Goddard, who is Williams’ co-defendant, and who was charged separately in connection with the same shooting incident. We consider Gary Goddard’s appeal separately at Commonwealth v. Goddard, 2097 EDA 2019. -2- J-A26016-20 why McDuffie did not acknowledge the others, at which point McDuffie stated that he “didn’t mess with none of [them]” and called them all “bitch.” Id. at 190. At the end of the verbal confrontation, McDuffie left, stating he would return soon. When McDuffie returned about forty-five minutes to an hour later, he was accompanied by Ballard, Jahmier Wilson, and Jackie Valentine; Williams and Wilson then walked away together to have a private conversation. Within the larger group, still standing around the Chrysler Pacifica, an argument ensued amongst Goddard, Jr., McNeil, McDuffie, and Ballard. McDuffie punched Goddard, Jr., in the face, and within moments, Williams removed the firearm from his waistband and began firing it at Wilson, who was running away from him. N.T. Jury Trial, 3/15/19, at 110-14; N.T. Jury Trial, 3/18/19, at 170-73. Although Williams fired repeatedly at Wilson, Wilson was not injured, but McDuffie and Ballard were struck. Ballard collapsed in the front yard of 911 Elmhurst Avenue and McDuffie was struck but still standing in the driveway of 916 Elmhurst Avenue. Gary Goddard then appeared, walking down Weston Avenue, with his hand raised and wielding a firearm. N.T. Jury Trial, 3/13/19, at 281-84. Standing in front of 916 Elmhurst Avenue, Goddard fired in the direction of the homes, and then at McDuffie, whose legs gave out from under him after the shots were fired. N.T. Jury Trial, 3/18/19, at 67-68. Goddard stood over McDuffie and discharged his firearm, lodging a bullet in McDuffie’s head just -3- J-A26016-20 above the hairline. N.T. Jury Trial, 3/13/19, at 288; N.T. Jury Trial, 3/18/19, at 117-22, 226-29. Williams, Skelton, and James fled the scene of the shooting towards Skelton’s home, located at 816 Winder Drive. After only a short time, Lemuel Skelton, Skelton’s father, became aware of the shooting, and directed Williams and James to leave his residence. Before leaving, Williams took Tajon Skelton’s white polo shirt. When police arrived at the Skelton residence, officers found Williams’ abandoned red shirt in a trashcan as a result of a consensual search. While conducting a search in the area of the shooting, police observed Williams running shirtless through a wooded brush area with James. Officers overheard Williams tell James, “Don’t worry about it; you didn’t do nothing wrong.” N.T. Jury Trial, 3/7/19, at 168-69. Upon being discovered by the officers, Williams stated to the police, “Sir, please put me in handcuffs. I don’t want to die.” Id. at 170-71. Police found Tajon Skelton’s white polo shirt in Williams’ pants pocket. The officers subsequently reviewed video footage from pole cameras near the scene of the shooting. In the footage, police observed Williams, James, and Skelton running away from the shooting down Winder Drive. Williams was wearing a red shirt as he fled the scene. The three fleeing individuals entered the backyard of 703 Winder Drive, remained off-camera for one minute and thirty seconds while in the yard, and reemerged on camera travelling further down Winder Drive. The footage of Williams running shows -4- J-A26016-20 his hands located around his belt area prior to entering the rear yard of 703 Winder Drive, but after leaving, his hands were no longer in his belt area. Police were dispatched to that address, where the owner of the property consented to a search. Police noticed a grill, which was completely covered in dirt and grime, except for the left handle. After searching the grill, police recovered a Rossi .38 Special revolver sticking out of the back near the propane tank. All five of the revolver’s cartridges were spent, and it contained shell casings. Skelton confirmed through testimony at trial that Williams was the only one who approached the grill when the three individuals were in the rear yard of 703 Winder Drive. See N.T. Jury Trial, 3/8/19, at 171-73. Other testimony revealed that Goddard, Jr., chased Wilson from the scene of the shooting, gun in hand and pointed forward with his arm fully extended. See N.T. Jury Trial, 3/15/19, at 38-41; see also N.T. Jury Trial, 3/18/19, at 223-25. When police arrived at the scene, Officer Michael Sarciewicz first found Ballard, who was still able to talk and move, lying in the grass at 911 Elmhurst Avenue. A crowd then directed the officer to McDuffie, who was unresponsive, located in front of 916 Elmhurst Avenue. The officer observed bleeding and several gunshot wounds on McDuffie, and commenced cardiopulmonary resuscitation (CPR). McDuffie and Ballard were both transported to Frankford- Torresdale Hospital, where McDuffie was pronounced dead on arrival, and Ballard pronounced dead shortly after arrival. -5- J-A26016-20 Doctor Zhonghue Hua conducted the autopsies of Ballard and McDuffie. Ballard was nineteen years old and suffered three gunshot wounds: one to his left lower chest area, which punctured his liver and injured the right kidney; one on his left side, with an exit wound above his buttocks; and one graze wound to his thumb. The bullet from Ballard’s first wound, which was still lodged in his body, was removed and turned over to investigators. Doctor Hua determined that the wound to Ballard’s torso was the cause of his death, and deemed it a homicide. See N.T. Jury Trial, 3/11/19, at 180-88. McDuffie was also nineteen years old and suffered five gunshot wounds, including one each to his forehead above the hairline, his left upper back, his right flank, his right kneecap, and a graze wound to his right upper chest. Doctor Hua determined the fatal injury was the gunshot wound to his right flank, which punctured McDuffie’s kidney. Id. at 193-94. Intact bullets were removed from McDuffie’s kneecap, head, and abdomen, and were turned over to investigators. Doctor Hua concluded McDuffie was still alive at the time he was shot in the head due to evidence of brain bleeding, that the cause of death was multiple gunshot wounds, and that the manner of death was homicide. Id. at 215. Police additionally removed two bullets from 914 Elmhurst Avenue—one had been lodged in the siding of the residence; the other entered a window, proceeded through the kitchen, through a box of cereal, and into the wall before striking a flue and falling onto the utility room floor. See N.T. Jury Trial, 3/6/19, at 212-23, 227. Eric Nelson, of the Montgomery County -6- J-A26016-20 Detectives,8 conducted a forensic examination of all six of the recovered bullets. The bullet recovered from the utility room and the one recovered from McDuffie’s skull were discharged from a .32 H&R revolver found by police in Gary Goddard’s apartment. The fatal bullets recovered from McDuffie’s abdominal wall and Ballard’s right torso were shot from the .38 Rossi Special firearm, which was recovered from the grill behind 703 Winder Drive. The other bullets recovered from McDuffie’s right knee and the siding of 914 Elmhurst Avenue were not traced to a known firearm, but were revealed to have been fired from a firearm similar to a .38 revolver or .9 mm pistol. See N.T. Jury Trial, 3/13/19, at 232-39. On May 5, 2018, the Commonwealth charged Williams with, inter alia, criminal homicide in connection with the shooting deaths of Ballard and McDuffie. At a preliminary hearing, the court permitted the Commonwealth to amend the charges, held all charges for court, and docketed the case at docket number 4366-2018. On August 14, 2018, the Commonwealth filed a criminal information reflecting the amendments.9 On October 18, 2018, the ____________________________________________ 8 Detective Nelson explained that, although he works for the Montgomery County Detectives, he often does work for the “surrounding counties,” including Bucks County. See N.T. Jury Trial, 3/13/19, at 213. 9 The information charged Williams as follows: Count 1 – first-degree murder; Count 2 – first-degree murder; Count 3 – criminal attempt to commit homicide; Count 4 – aggravated assault; Count 5 – possession of a firearm by a person prohibited; Count 6 – discharge of a firearm into an occupied structure; Count 7 – firearms not to be a carried without a license; Count 8 – REAP; and Count 9 – PIC. -7- J-A26016-20 Commonwealth separately charged Williams at docket number 7352-2018 in connection with the unlawful sale and transfer of the firearm that was used to kill Ballard and McDuffie.10 At a preliminary hearing held on December 18, 2018, the court held all charges for court, and docketed that case at docket number 7352-2018. On March 4, 2019, the court held a hearing prior to the commencement of trial to resolve outstanding pretrial matters. At that hearing, the court granted the Commonwealth’s motion to consolidate the two cases against Williams with the case against Gary Goddard for a joint jury trial. The court also granted Williams’ motion to sever the charge of possession of a firearm by a person prohibited. A joint jury trial commenced on March 4, 2019, and concluded on March 22, 2019. At the close of deliberations, the jury convicted Williams of the above-stated offenses. During the trial, the court granted the Commonwealth’s motion to nolle prosequi the charge of aggravated assault, and granted Williams’ demurrer as to the crimes of discharging of a firearm into an occupied structure, dealing in proceeds of unlawful activities, criminal conspiracy to commit sale or transfer of firearms, and sale or transfer of a firearm. After trial, the court granted the Commonwealth’s motion to nolle ____________________________________________ 10 The Commonwealth charged Williams as follows: dealing in proceeds of unlawful activities, 18 Pa.C.S.A. § 5111(a)(2); criminal conspiracy to commit sale or transfer of firearms, 18 Pa.C.S.A. § 903; sale or transfer of firearm, 18 Pa.C.S.A. § 6111(g)(2); and tampering with or fabricating physical evidence, 18 Pa.C.S.A. § 4910. -8- J-A26016-20 prosequi possession of a firearm by a person prohibited, which had been previously severed. On May 3, 2019, as to docket number 4366-2018, the court sentenced Williams on Count 1 (first-degree murder) to a period of incarceration of life without the possibility of parole; Count 2 (first-degree murder) to a term of incarceration of life without the possibility of parole, to be served consecutively to Count 1; Count 3 (criminal attempt to commit homicide) to a term of 120 to 240 months’ incarceration; Count 7 (firearms not to be carried without a license) to a term of 42 to 83 months’ incarceration; Count 8 (REAP) to a term of 12 to 24 months’ incarceration; and Count 9 (PIC) to a term of 30 to 60 months’ incarceration, with Counts 3, 7, 8, and 9 to be served concurrently to Counts 1 and 2. As to docket number 7352-2018, the court sentenced Williams to 12 to 24 months’ incarceration to be served concurrently with the two consecutive life sentences docketed at 4366-2018. On May 13, 2019, Williams filed a post-sentence motion under docket number 4366-2018, which the court denied on May 29, 2019. On June 20, 2019, Williams filed a notice of appeal as to docket number 4366-2018. On June 25, 2019, the trial court ordered Williams to file a concise statement of errors complained of on appeal no later than 21 days subsequent, pursuant to Pa.R.A.P. 1925(b). On August 1, 2019, Williams filed an untimely Rule -9- J-A26016-20 1925(b) statement.11 The court subsequently filed a joint opinion as to both Williams’ and Goddard’s appeals, pursuant to Pa.R.A.P 1925(a). On appeal, Williams presents the following issues for our review:12 1. Did the [c]ourt err in refusing to allow [Williams] to impeach the hearsay testimony of [Justin Olexovitch,] a Commonwealth witness? 2. Did the [c]ourt err in admitting a letter [Williams] wrote from prison to [William Flemming, his cousin,] that had no relevance to the criminal acts charged in the information? Appellant’s Brief, at 3. Both of Williams’ issues present evidentiary challenges. We review a trial court’s decision of whether or not to admit evidence under the following well-established standard: The admissibility of evidence is a matter for the discretion of the trial court and a ruling thereon will be reversed on appeal only upon a showing that the trial court committed an abuse of discretion. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or ____________________________________________ 11 Despite Williams’ untimely-filed Rule 1925(b) statement, this Court may consider the merits of his appeal. See Commonwealth v. Thompson, 39 A.3d 335 , 340 (Pa. Super. 2012) (“When counsel has filed an untimely Rule 1925(b) statement and the trial court has addressed those issues[,] we need not remand and may address the merits of the issues presented.”). The court addressed Williams’ issues in its Rule 1925(a) opinion; therefore, we may proceed to the merits of his appeal. 12Due to a conflict of interest arising from court-appointed appellate counsel’s representation of Williams, see Motion to be Withdrawn as Counsel, 4/16/20, Attorney Stuart Wilder, Esquire, entered his appearance before this Court on April 15, 2020, following his appointment in the trial court. We then permitted Attorney Daniel Schatz, Esquire’s withdrawal. See Order Granting Application to Withdraw as Counsel, 4/27/20. Attorney Wilder filed a timely appellate brief raising the issues contained herein. - 10 - J-A26016-20 partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous. Commonwealth v. McClure, 144 A.3d 970 , 975 (Pa. Super. 2016) (quoting Commonwealth v. Poplawski, 130 A.3d 697 , 716 (Pa. 2015)) (internal citations and quotation marks omitted). First, Williams argues that the court erred when it denied his motion to call Detective Gregory Beidler to the stand. Specifically, Williams argues that he should have been permitted to impeach, through the testimony of Detective Beidler, a hearsay declaration made by Justin Olexovitch, pursuant to Pa.R.E. 806 and the Confrontation Clause. We agree with Williams that there was error, but, as explained in greater detail below, determine that the error was harmless. At trial, the Commonwealth called Rayshaun James to testify that Justin Olexovitch gave him a gun with instructions to give that weapon to Williams. See N.T. Jury Trial, 3/12/19, 163-64. The Commonwealth offered James’ testimony to support a conviction for Williams’ alleged conspiracy to commit sale or transfer of firearms.13 This hearsay statement—James’ testimony that Olexovitch instructed James to give the gun to Williams—was admitted as a statement uttered in furtherance of an alleged conspiracy, pursuant to Pa.R.E. ____________________________________________ 13 Other evidence introduced by the Commonwealth which supported this charge included: the unlawful purchase of the murder weapon by a straw purchaser; how the gun came into Olexovitch’s possession; and, that James gave Williams the firearm, who only a short time later, used it to murder Ballard and McDuffie. As previously noted, the court ultimately granted Williams’ demurrer with regard to this charge. - 11 - J-A26016-20 803(25)(E). See N.T. Jury Trial, 3/20/19, at 125; see also Trial Court Opinion, 3/3/20, at 28-30. Before resting, the defense made a motion to call Detective Beidler to the stand. See N.T. Jury Trial, 3/20/19, at 124-28. Williams notified the court that Detective Beidler would testify that when he interviewed Olexovitch, Olexovitch stated that he gave no one instructions to give a gun to Williams. Williams claims that this evidence should have been admitted under Rule 806 because it impeaches Olexovitch’s previously-admitted hearsay statement, which was entered into evidence via Rayshaun James’ testimony. See Appellant’s Brief, at 11. As noted above, the trial court denied Williams’ motion to call Detective Beidler. The court stated for the record that it made its decision in light of the fact that it had already granted Williams’ demurrer as to conspiracy to commit sale or transfer of firearms. See N.T. Jury Trial, 3/20/19, at 127. The court opted, instead, to provide the jury with a cautionary instruction: that any mention of Olexovitch should be disregarded. Id. at 128 (“I’m going to give the jury an instruction; that they may have heard the name Justin Olexovitch, but that they should not in any way consider what reference was made to him in their deliberations because he’s not a party, and for those reasons I’ve given a special instruction not to consider any connection to Justin Olexovitch by any issue in this case.”). Nevertheless, the instruction given to the jury differed materially from what had been previously discussed on the record, insofar as the court - 12 - J-A26016-20 permitted the jurors to determine for themselves the importance of Olexovitch’s hearsay declaration, rather than instructing that Olexovitch had no connection to Williams’ case:14 Members of the jury, there was a mention, and it’s for you to remember, of a person named Justin Olexovitch in this case. I’ll tell you now that he is not on trial here. Even though he was mentioned, it’s for you to recall how important his testimony may have been. I mentioned to you certain witnesses were not called and the inference you can draw when I mentioned Jahmier Wilson, but with regard to Justin Olexovitch, it’s enough for me to tell you that he did not have to testify in this case because he possessed a legal privilege not to testify, you should not draw an inference of whether his testimony would have been favorable to the Commonwealth or the defense, and if he has refused to testify because of this special legal privilege, no inference should be drawn by you with regard to this testimony, and I’ll tell you now that you shouldn’t consider and give great weight to the fact that ____________________________________________ 14 The trial court’s Rule 1925(a) opinion and the Commonwealth’s brief apparently misapprehended Williams’ present claim of error: the trial court understood Williams to be objecting to James’ testimony on the grounds of inadmissible hearsay, see Trial Court Opinion, 3/3/19, at 28-30, while the Commonwealth characterizes Williams’ early attempts to grant Olexovitch immunity as the genesis of his claim. See Appellee’s Brief, at 21-24. Although a similar trial purpose is evident in each of these strategies, Williams’ present claim stems from his motion to call Detective Beidler to the witness stand to impeach Olexovitch’s hearsay declaration, pursuant to Rule 806, see N.T. Jury Trial, 3/20/19, at 124-28; not Williams’ objection to James’ testimony as hearsay, see N.T. Jury Trial, 3/12/19, 163-64, or his motion to grant Olexovitch immunity to testify. See N.T. Pre-Trial Hearing, 3/4/19, at 102-08. Additionally, both the trial court’s Rule 1925(a) opinion and the Commonwealth’s brief would have this Court find that the court’s cautionary instruction cured any error with regard to Williams’ claim. See Trial Court Opinion, 3/3/19, at 30; see also Appellee’s Brief, at 23-24. Nevertheless, the court’s instruction failed to address Rule 806 in any material way—likely as the result of the same misapprehension—and, therefore, was not curative. See N.T. Jury Trial, 3/21/19, at 61-62; see also Commonwealth v. Maloney, 365 A.2d 1237 , 1241 (Pa. 1976) (“[A]dequate instructions under some circumstances may cure error[.]”). - 13 - J-A26016-20 his name was mentioned except as it appeals to you in proving the case against these defendants. N.T. Jury Trial, 3/21/19, at 61-62 (emphasis added). Williams argues that James’ testimony—that Olexovitch instructed James to give the gun to Williams—bolstered the Commonwealth’s claim that Williams possessed the illegally-purchased murder weapon. Williams argues that the admission of this testimony ultimately helped prove the Commonwealth’s homicide cases and the remaining charges for which the jury convicted Williams. See Appellant’s Brief, at 11; see also Appellant’s Reply Brief, at 1. We agree; but for the reasons stated below, we also find this error to be harmless, beyond a reasonable doubt. “All relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant is not admissible.” Pa.R.E. 402. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Pa.R.E. 401. Moreover, hearsay evidence is generally inadmissible, though several exceptions allow for its admission. One such exception, Pa.R.E. 806 (Attacking and Supporting the Declarant’s Credibility), relevant here, provides: When a hearsay statement has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party - 14 - J-A26016-20 may examine the declarant on the statement as if on cross- examination. Pa.R.E. 806. Here, the trial court admitted Olexovitch’s hearsay statement, which was related to the jury via Rayshaun James’ testimony. See N.T. Jury Trial, 3/12/19, 163-64. Although the Commonwealth made its evidentiary proffer in support of a charge which the court ultimately dismissed (conspiracy to commit sale or transfer of firearms), James’ retelling of Olexovitch’s statement also had the effect of bolstering the evidence that supported the remaining and still-pending charges. Thus, even if the conspiracy charge was no longer at issue, because Olexovitch’s hearsay declaration bolstered the evidence relating to the other still-pending charges, Olexovitch’s credibility was open to attack by an inconsistent statement. See Pa.R.E. 806; see also Commonwealth v. Walter, 119 A.3d 255 , 288 (Pa. 2015) (“[Rule 806] provid[es] for the admission of hearsay statements challenging the credibility of the declarants of previously admitted hearsay statements.”). Williams’ proposed admission of Detective Beidler’s testimony, that Olexovitch denied instructing the delivery of a weapon to Williams, certainly qualifies as an inconsistent statement when compared with James’ already- admitted testimony. Detective Beidler’s proposed testimony was thus admissible under the rule, even if deemed hearsay. See Walter, supra. The court’s instruction to the jury, having failed to address this point, did not cure the error. See n.12, supra. Nevertheless, we hold that the trial court’s - 15 - J-A26016-20 error—the denial of Williams’ motion to call Detective Beidler to the stand to attack Olexovitch’s credibility, pursuant to Rule 806—was harmless. Our Supreme Court has long held that: although a perfectly conducted trial is indeed the ideal objective of our judicial process, the defendant is not necessarily entitled to relief simply because of some imperfections in the trial, so long as he has been accorded a fair trial. A defendant is entitled to a fair trial but not a perfect one. If a trial error does not deprive the defendant of the fundamentals of a fair trial, his conviction will not be reversed. Commonwealth v. Noel, 104 A.3d 1156 , 1169 (Pa. 2014) (quoting Commonwealth v. Wright, 961 A.2d 119 , 135 (Pa. 2008)) (brackets and quotation marks omitted). Where a trial court has erroneously failed to admit evidence, we may find that no new trial is warranted if we are convinced the error was harmless beyond a reasonable doubt. See Commonwealth v. French, 578 A.2d 1292 , 1301 (Pa. Super. 1990). The Commonwealth carries this burden. Commonwealth v. Adams, 39 A.3d 310 , 322 (Pa. Super. 2012). Our Supreme Court has clarified that harmless error exists where the record demonstrates either: (1) the error did not prejudice the defendant or the prejudice was de minimis; or (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict. Commonwealth v. Hairston, 84 A.3d 657 , 671-72 (Pa. 2014). Here, the Commonwealth argues that the prejudice to Williams was de minimis and that the properly admitted and uncontradicted evidence of - 16 - J-A26016-20 Williams’ guilt was so overwhelming by comparison to the error, that it could not have contributed to the verdict. See Appellee’s Brief, at 31-33. We agree. At trial, numerous individuals testified that they saw Williams possess the gun, discharge it, or both. See N.T. Jury Trial, 3/12/19, at 178-79 (James testified he walked “off camera” with Williams, handed Williams firearm, and Williams placed it in waistband); id. at 203-07 (James testified he heard gunshot, saw Williams place firearm in waistband again, and saw Williams running with Skelton; James followed pair to rear yard where the three stayed before proceeding to Skelton’s home); N.T. Jury Trial, 3/7/19, at 193-94 (Officer Dennis Leighton testified he observed pole video camera footage of scene after shooting, showing Williams entered backyard of 703 Winder Drive, waited approximately one minute before fleeing rear yard; police found murder weapon hidden inside grill in rear yard.); N.T. Jury Trial, 3/11/19, at 108-09 (Officer Edmund O’Brien testified as to observations of pole camera video, “For [] Williams, as he was running from the 600 block to the 700 [] block [of Winder Drive], his right hand was observed on his right side right around the belt loop area. . . . Coming out of [703 Winder Drive] he appears to be running as normal.”); N.T. Jury Trial, 3/8/19, at 51-52 (Valentine testified that he told detectives he “watched Joey Williams [shoot] Tommy Ballard”), at 101 (“[Commonwealth Attorney:] And when he shot the gun you knew his name was Joey Williams, correct? [Jackie Valentine:] Yes. [Commonwealth Attorney:] And when he shot Tommy Ballard you knew his name was Joey Williams, correct? [Jackie Valentine:] Yes.”); N.T. Jury Trial, - 17 - J-A26016-20 3/15/19, at 112-14 (April Coleman testified “I just know [Williams] stepped back, and he pulled out the gun, and I heard pow. . . . He shot again. . . . [Williams] shoots again, and then I lost view. I heard a third shot[.]”); N.T. Jury Trial, 3/18/19, at 105-07 (Krystalyn Coleman testified “[Williams] had a gun in his hands [with it pointed forward and shot it] in the direction [Wilson] was running from [sic]. . . . That’s when I see [Williams]. So I froze because, I mean, I don’t want to run in front of the bullets. He’s shooting at him. I don’t want to get hit, so I just stopped.”). Here, we find the failure to admit Williams’ proposed impeachment evidence was a de minimis error, especially when compared to the overwhelming admitted evidence that supported findings that Williams possessed and fired the murder weapon. See Hairston, supra. Additionally, the Commonwealth correctly notes that once the court granted Williams’ demurrer as to the conspiracy charge, the importance of Olexovitch’s testimony regarding the remaining charges was greatly minimized—the manner in which Williams acquired the weapon had little significance in answering the question of whether he murdered Ballard and McDuffie and whether he intended to kill Wilson. See Appellee’s Brief, at 32. Further, other evidence adduced at trial overwhelmingly supported Williams’ convictions: all of the firsthand witness testimony regarding what transpired at the scene; that Williams fled the scene; that he abandoned the shirt he wore at the time of the shootings; and that he made incriminating statements at the time of his arrest. See Hairston, supra. - 18 - J-A26016-20 We find beyond a reasonable doubt that the properly admitted evidence of Williams’ guilt was so overwhelming, and the prejudicial effect of the court’s error regarding the failure to admit the proposed impeachment evidence so insignificant by comparison, that the error could not have contributed to the verdict. Id.; see also Adams, supra. Accordingly, the trial court’s error did not deprive Williams of the fundamentals of a fair trial.15 See Noel, supra. In his second and final issue on appeal, Williams claims the trial court erroneously admitted a letter that he wrote to his cousin, William Flemming, from prison, after his arrest. See Appellant’s Brief, at 17. Prior to trial, several members of the audience wore matching t-shirts, demonstrating their affiliation and solidarity with the parties. Some shirts bore images and nicknames of witnesses the Commonwealth intended to call. The trial court issued a warning that the trial would not be influenced in any manner, including by the wearing of matching t-shirts or by intimidation. See N.T. Pre-Trial Hearing, 3/4/19, at 61-66. Nevertheless, certain individuals failed to follow the court’s instruction, wore matching shirts in support of Williams to trial, and were subsequently admonished by the court. See N.T. Jury Trial, 3/6/19, at 117-30. Upon admonishment, Flemming and another individual abandoned their shirts in the courtroom; the shirts were then placed in the ____________________________________________ 15 We need not reach Williams’ Sixth Amendment Confrontation Clause arguments, see Appellant’s Brief, at 12-14, given that any error we might find would be subject to the same harmless error analysis. See Commonwealth v. Brown, 139 A.3d 208 , 219-20 (Pa. Super. 2016) (after finding Confrontation Clause violation, this Court examines whether error was harmless beyond a reasonable doubt). - 19 - J-A26016-20 Commonwealth’s custody. Flemming’s abandoned shirt had a silkscreen logo that was identical to one found on the red shirt that Williams abandoned during his flight from the crime scene, and was also the same as a hand-drawn image found on the letter that Williams wrote to Flemming from prison. Moreover, Flemming’s abandoned shirt included a variety of phrases including “#1300,” which also appeared in the letter. See N.T. Jury Trial, 3/18/19, 327-28. The contents of Williams’ letter to Flemming were read aloud to the jury and published on a monitor for viewing, but without the envelope indicating it was sent from prison.16 See N.T. Jury Trial, 3/18/19, 313-17. Williams argues ____________________________________________ 16 Detective Frank Groome’s testimony described the letter: [By Commonwealth Attorney:] Taking a look at what’s on the screen currently, if we could zoom in on the top left corner. The name there is Joseph Williams; is that right? A. Yes, ma’am. Q. And it’s addressed to William Flemming in Philadelphia; correct? A. Correct. Q. That’s the name of the individual you saw wearing that red shirt in court? A. Yes. Q. If we could scroll down. And we’re taking a look now at an image that seems to be hand drawn. What is that image? A. That’s an image similar to the silkscreen that was on the shirt. * * * - 20 - J-A26016-20 ____________________________________________ Q. [I]f we could actually [] focus on the bottom portion, the letter portion where it begins, “Yo, Cuz.” This is the body of the letter that was written and then encompassed in that envelope; correct? A. Yes, ma’am. Q. It says: “Yo, Cuz. I’m chillin. Just bored as shit. I had to write yall or something. The detectives came and gave me a mouth swab. I gotta beat this. I’m in it real rap bro. Make sure yall doing what yall can for me, man[n.”] And there’s “[OSS]”; right? A. Yes. * * * Q. “It felt like niggas forgot about me. Keep it a bean, before all this” –and then there’s something that appears to be cut off— “shit. But imma be ARD, ten toes down. These crackers trippin. My Pop-Pop name Jimmy. I stand tall no matter the outcome. RS. This ain’t that. I’ll never sell my soul to them niggas, but my bread gettin[”]—and then it just says “[OW].” It seems to be cut off. “Im at a dub. Imma try to go a week without calling yall. Make sure yall screaming for Joey on the social real rap. Fuck that. But I love yall! Supposedly the lawyer I called coming to see me this week, so I fuck around and call you then if you get to the bottom of shit. I heard Kira, your baby again. Tell her I said wassup lol. RD.” Correct? A. Yes, ma’am. Q. And now, if we could focus on the top portion, and it says over to the right: “Jordan told me draw something for his corney [sic] ass designs he got on his shirts. Take a pic and send it to him.” Is that what it says at the top? A. Yes, ma’am. Q. This is dated May 14th[, 2018]; correct? A. Yes. - 21 - J-A26016-20 ____________________________________________ Q. Underneath [] on the left-hand side it says: “Target,[”] then [“shoota[”], [“]mood[”], [“song”], [“]artist.” On the right-hand side it had a number of hashtags. A. Yes. Q. Under where [sic] it indicates [“]target[”], [is written] “[B.A.M SNM].” Do you know what that’s a reference to? A. No, I do not. Q. Below that, it says “Shoota,” [] correct? A. Yes. Q. And it says: “Joey twin [IAMAL”]; is that fair? A. Yes. Q. Below that, “Mood - Fall[i]n Back,” and below that: [“Song - MoneyBag Myers”]? A. Correct. Q. The [“Artist - MoneyBag Yo”]; correct? A. Correct, ma’am. Q. On the right it says, [] “[#]unbreakable,” below that [] “[#]1300!” [], “P-20[-]Vill.” Do you know what the reference of 1300 is? A. I do not know what 1300 is. Vill would be [Winder] Village. Q. Below that it says, “[#OTF-FTO],” and then [] “[#]solid,” with what appears to be [a hand-drawn image of] a strong arm; correct? A. Solid, I’ve seen that before. It usually means solid, stay strong. Q. Okay. Did you have an opportunity to do research and determine what that song is, the MoneyBagg Myers song? A. Yeah, I pulled the lyrics up, and I looked at the lyrics. - 22 - J-A26016-20 that, pursuant to Pa.R.E. 403, the letter’s probative value was outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Appellant’s Brief, at 18. Specifically, Williams argues that the letter “did nothing to prove [Williams] killed anyone on May 4, 2018,” that the letter “portrays its writer as a filthy[-]mouthed but scared young man hoping for some support from friends and neighbors,” and was a “racially charged piece of evidence at the trial of a black man for a crime committed in a black neighborhood” that was “unfairly inflammatory and of no relevance to the issues at hand.” Id. at 18-19 . Finally, Williams claims he deserves a new trial and that “[t]his Court should send a message to trial courts that evidence that needlessly racially stereotypes a criminal defendant, when not absolutely necessary to prove some point at trial, cannot be viewed by the finder of fact upon pain of reversal[.]” Id. at 20 . ____________________________________________ * * * Q. And looking from the left—and of course [Williams’ letter to Flemming] will speak for itself—on the fourth one down, there’s a [hand-drawn] musical note or a clef sign. To the right of that is[:] [“]Song[-]MoneyBag Myers,[”] and below that, [“]Artist[- ]MoneyBag Yo.[”] And you say you have the lyrics of that song? A. Yes, sir. [Whereupon copies of the song’s lyrics were distributed and published to each member of the jury and the song was played in court.] N.T. Jury Trial, 3/18/19, at 313-19. - 23 - J-A26016-20 As noted above, all relevant evidence is admissible, except as otherwise provided by law, and irrelevant evidence is inadmissible. Pa.R.E. 402. One noted exception is found in Rule 403, which states “[t]he court may exclude relevant evidence if its probative value is outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403. Our Supreme Court has explained that all evidence is necessarily prejudicial: Probative value and prejudice are conjoined in the sense that if evidence is probative at all, it is necessarily prejudicial to one side or the other—if evidence has no probative value, it ought not be admitted in the first place, and this can usually be determined before trial. The balancing inquiry, however, is a fact- and context-specific one that is normally dependent on the evidence actually presented at trial. The value of evidence is obviously a fluid notion, and the prejudicial effect of the evidence is likewise in flux as matters progress. Commonwealth v. Hicks, 91 A.3d 47 , 53-54 (Pa. 2014). Here, Williams argued a mistaken-identity defense throughout trial and in closing argument. See N.T. Jury Trial, 3/20/19, at 155-56. Contrary to Williams’ claims, we find that the letter he wrote was clearly probative of his identity as the shooter insofar as the letter, penned by his hand, states “Shoota – Joey Twin IAMAL” next to the hand-drawn image of a gun and underneath the words “Target – B.A.M SNM.” Moreover, a hand-drawn illustration found on the letter matched an image that was observed on the red shirt worn by Williams during the shooting—the same shirt Williams - 24 - J-A26016-20 abandoned at the Skelton residence in an attempt to hide his identity as the shooter—when he fled the scene and hid the firearm in the grill behind 703 Winder Drive. See N.T. Jury Trial, 3/7/19, at 175; N.T Jury Trial, 3/18/19, at 277-80, 286, 312-13, 324. This same image also appeared on the later- abandoned shirt worn by Flemming at Williams’ trial. Additionally, Williams fails to identify what specific language or content in the letter unduly prejudiced him. Although there is some use of profanity and racial slurs, we agree with the Commonwealth that the true focus of the letter is on providing an update on his case, noting Williams’ belief that he will be acquitted of the charges, and requesting continued support. We discern no abuse of discretion in the trial court’s decision to admit the letter as highly probative evidence of Williams’ identity as the shooter. See McClure, supra. Finally, we note that any unfair prejudice was mitigated by the court’s proper cautionary instruction to the jury regarding how the letter should be appropriately considered.17 See Commonwealth v. Jemison, 98 A.3d 1254 , ____________________________________________ 17 The court cautioned the jury as follows: I want to address another matter with you. Yesterday we had Detective Frank Groome testify as a witness[. P]rior to his testimony you saw some evidence, a red T-shirt. Detective Groome highlighted the fact that [t]his T-shirt, which was found in a trash can, allegedly had a specific unique type of silkscreen logo on the front. You were made aware of that, and we also saw it as an exhibit. There was a letter that was written by this [d]efendant, Joseph Williams, and of that there is no dispute. You can accept that. - 25 - J-A26016-20 ____________________________________________ And it has on it what appears to be a handwritten logo similar to the logo that is silkscreened on the T-shirt. Whether it is or not is a fact for you, but that’s my view of why the Commonwealth sought to introduce it. I believe, and they will argue if they choose, that that somehow establishes the identity of the owner of the T-shirt to [sic] Joseph Williams. But again, it’s for you to determine if that has been proven, and if, in fact, it is an important issue. In the end, what is important is a decision for you and you alone. You determine the weight to be given any evidence, and I’ll discuss that with you at the end of the case. Having said that, in that letter there was a reference to a rap song. The Commonwealth will argue that this again establishes the identity of the writer of the letter and is connected to the T-shirt, but again, I’m not saying it’s so; only what I believe the Commonwealth will argue. I permitted the playing of this rap song for you, and the Commonwealth provided two pages of lyrics for that song. Now, it is nothing more than a rap song, and I would not want you to think that it had any special value or evidentiary importance in and of itself. It is clear that [Williams] did not write this song. He only referred to it in a letter, which apparently bears the same logo as the T-shirt. I’ll be candid with all of you. We are all adults. This song is somewhat graphic in some measure, but it has no implications whatsoever as to the ultimate issue in this case, which is, has the Commonwealth proven beyond a reasonable doubt each and every element of every crime charged as against [] Joseph Williams, and [] Gary Goddard. The song, without more, is just one of many pieces of evidence you’ll consider, but it has a limited purpose, and I didn’t want you to draw the inference that this song proves anything. It certainly does not stand alone, just a part and parcel of[,] and it absolutely does not implicate, in any fashion, in any of these crimes, either Mr. Williams or Mr. Goddard, and I would not want you to think that it did. So having told you that, it is only offered for a limited purpose. In the end, whether or not it has evidentiary value for you will be determined, but I can tell you now, and I can’t stress it enough, Mr. Williams did not write this song. No one is suggesting he endorses any of the things said in the lyrics, and it - 26 - J-A26016-20 1263 (Pa. 2014) (“Any possibility of unfair prejudice is greatly mitigated by the use of proper cautionary instructions to the jury.”). The jury is presumed to have followed the court’s instructions. Id. Therefore, Williams’ second claim on appeal fails. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 1/26/2021 ____________________________________________ absolutely has no bearing whatsoever on whether or not he is guilty of all, any, or none of these crimes. I just wanted you to know that. N.T. Jury Trial, 3/19/19, at 11-14 (emphasis added). - 27 -

2021-01-26 18:12:15.937453+00

http://www.pacourts.us/assets/opinions/Superior/out/J-S40006-20m - 104671841126279960.pdf

J-S40006-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHAWN TURNER : : Appellant : No. 3230 EDA 2019 Appeal from the PCRA Order Entered August 30, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001329-2015, CP-51-CR-0001336-2015, CP-51-CR-0001354-2015, CP-51-CR-0001370-2015, CP-51-CR-0001371-2015, CP-51-CR-0008881-2014 BEFORE: SHOGAN, J., KING, J., and COLINS, J.* MEMORANDUM BY SHOGAN, J.: FILED JANUARY 26, 2021 Appellant, Shawn Turner, appeals pro se from the order denying his petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm. The PCRA court summarized the procedural history of this case as follows: On March 22, 2016, Appellant . . . entered non-negotiated guilty pleas on seven (7) cases, as follows: CP-51-CR-0008881-2014 -- Fleeing or attempting to elude police (F-3); CP-51-CR-0001329-2015 – Robbery (F-1), Conspiracy to Commit Robbery (F-1), Possession of an Instrument of a Crime (M-1) and Terroristic Threats (M-1); ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-S40006-20 CP-51-CR-0001336-2015 – Robbery (F-1), Conspiracy to Commit Robbery (F-1), Possession of an Instrument of a Crime (M-1), Terroristic Threats (M-1) and Simple Assault (M-2); CP-51-CR-0001354-2015 – Robbery (F-1) and Possession of an Instrument of a Crime (M-1); CP-51-CR-0001370-2015 – Robbery (F-1) and Conspiracy to Commit Robbery (F-1); CP-51-CR-0001371-2015 – Robbery (F-1), Conspiracy to Commit Robbery (F-1) and Possession of an Instrument of a Crime (M-1); and CP-51-CR-0001372-2015 – Robbery (F-1), Conspiracy to Commit Robbery (F-1) and Possession of an Instrument of a Crime (M-1).1 1 Appellant only listed six (6) cases in his PCRA petition, omitting CP-51-CR-0001372-2015. Although that case is not part of this appeal, it is included herein for completeness. On August 3, 2016, [Appellant] was sentenced to an aggregate of 17 1/2 to 35 years incarceration. On August 11, 2016, a timely Motion for Reconsideration of Sentence was filed by [Appellant]. On August 25, 2016, the [c]ourt denied the motion for reconsideration of sentence. A timely Notice of Appeal was filed on September 19, 2016. The sentences were affirmed by the Superior Court on November 15, 2017. On November 7, 2018, Appellant filed a timely pro se petition pursuant to the Post Conviction Relief Act (PCRA). On July 16, 2019, appointed counsel submitted a no-merit letter and motion to withdraw, pursuant to Commonwealth v. Finley, [ 550 A.2d 213 ] (Pa. Super. 1988). -2- J-S40006-20 On August 6, 2019, the [c]ourt issued a Notice of Intent to Dismiss the petition, pursuant Pa.R.Crim. P. 907. On August 30, 2019, the [c]ourt dismissed the PCRA petition, granted counsel’s motion to withdraw, and sent Appellant notice of the dismissal, pursuant to Pa.R.Crim.P. 907(4). On September 30, 2019, Appellant mailed a pro se notice of appeal to the [c]ourt, addressed to chambers.2 The [c]ourt forwarded that notice to the clerk for filing. 2 Appellant’s Notice of Appeal and Certificate of Service are dated September 30, 2019. The postmark on the envelope from SCI-Forest is dated October 1, 2019.[1] * * * Prior to pleading guilty, [Appellant] executed a written guilty plea colloquy on each case and an oral colloquy was conducted. PCRA Court Opinion, 11/12/19, at 1-2 (internal citation omitted). Before we can entertain the merits of the instant appeal, we must address the fact that Appellant filed a single pro se notice of appeal identifying six different docket numbers. “The Official Note to Rule 341 was amended in 2013 to provide clarification regarding proper compliance with [Pa.R.A.P] 341(a)[.]” Commonwealth v. Walker, 185 A.3d 969 , 976 (Pa. 2018). For ____________________________________________ 1 “[T]he prisoner mailbox rule provides that a pro se prisoner’s document is deemed filed on the date he delivers it to prison authorities for mailing.” Commonwealth v. Chambers, 35 A.3d 34 , 38 (Pa. Super. 2011). Appellant’s notice of appeal and certificate of service are dated September 30, 2019. The docket indicates that the notice of appeal was filed on October 1, 2019. The PCRA court further noted that on September 30, 2019, Appellant mailed a pro se notice of appeal to the court, addressed to chambers, which the PCRA court forward to the clerk for filing. PCRA Court Opinion, 11/12/19, at 2. Thus, it appears that Appellant attempted to mail the notice of appeal on September 30, 2019. As such, we conclude that the filing of this appeal is timely pursuant to the prisoner-mailbox rule. -3- J-S40006-20 cases filed after June 1, 2018, Walker requires that when a single order resolves issues arising on more than one lower court docket, separate notices of appeal must be filed. Failure to do so results in quashal of the appeal. Id. at 977. In the case sub judice, Appellant filed his pro se notice of appeal on September 30, 2019. On January 6, 2020, we issued a rule to show cause why the instant appeal should not be quashed under Walker. In his response, Appellant claims that he was initially unaware of the Walker rule, but upon learning of it, he filed a motion to file appeals nunc pro tunc with the clerk for the Common Pleas Court of Philadelphia. Appellant’s Response to the Issued Order, Dated January 6, 2020, to Show Cause, 1/21/20, at 1-2. Despite Appellant’s assertions, however, the court of common pleas docket does not reflect the filing of such motion. The show-cause order was discharged on January 21, 2020, and the matter was referred to this merits panel. Walker’s mandate is clear. Appellant was required to file six separate notices of appeal in this matter. Appellant failed to do so. Thus, at first blush, this appears to be a clear violation of Walker, requiring quashal of this appeal. However, we conclude that quashal is unnecessary in light of this Court’s recent decision in Commonwealth v. Larkin, 235 A.3d 350 (Pa. Super. 2020). In Larkin, the PCRA court entered an order dismissing the defendant’s PCRA petition, in which the defendant had sought PCRA relief relating to more than one docket. The PCRA court’s dismissal order informed the defendant that he had thirty days from the date of the order “to file an appeal.” (emphasis in original). The defendant timely filed a notice of appeal listing both -4- J-S40006-20 of his criminal docket numbers. We declined to quash the appeal on the ground that the order’s reference to “an appeal” misled the defendant into filing a single notice of appeal, thus constituting a breakdown in the court’s operation. [Larkin, 235 A.3d at 353- 354] (citing Commonwealth v. Stansbury, 219 A.3d 157 , 159- 60 (Pa. Super. 2019) (noting that “we have many times declined to quash a [defective] appeal when the defect resulted from an appellant’s acting in accordance with misinformation relayed to him by the trial court” and holding that this Court can overlook such defects because the purveyance of misinformation by the court constitutes a breakdown in the court’s operations)). Commonwealth v. Floyd, ___ A.3d ___, ___ , 2020 Pa. Super. 287 , *3 (Pa. Super. filed December 16, 2020) (some internal citations omitted). Instantly, the PCRA court’s certification of dismissal, which lists all six docket numbers, notified Appellant that he may file “a” notice of appeal. Notice of Dismissal of PCRA Petition and Right to Appeal Pursuant to Pennsylvania Rule of Criminal Procedure 907(4), 8/30/19, at 1. As this Court concluded in Larkin, a breakdown occurred in the court system and Appellant was misinformed or misled regarding his appellate rights; thus, we may overlook the requirements of Walker. Larkin, 235 A.3d at 354. Accordingly, pursuant to the holding in Larkin, we decline to quash Appellant’s appeal. We now turn to the merits of this appeal. Appellant presents the following issues for our review, which we present verbatim: 1. Whether Giovanni O. Campbell, Trial Judge (hereafter Judge Campbell) improperly dismissed the Motion For Post-Conviction Collateral Relief that appellant, pro se, filed with the Clerk for Court of Common Pleas of Philadelphia County (Common Pleas- Philadelphia)? 2. Whether Giovanni O. Campbell, Trial Judge (hereafter Judge Campbell) improperly granted the Motion to Withdraw that -5- J-S40006-20 Matthew P. Sedacca, Esq., Post-Conviction counsel (hereafter attorney Sedacca) filed with the Clerk for Court of Common Pleas of Philadelphia County (Common Pleas -Philadelphia)? 3. Whether Evan Hughes, Esq., Trial counsel (hereafter attorney Hughes) made to appellant an improper promise relative (to appellant receiving a pre-determined sentence term of seven and a half (71/2) years to fifteen (15) years imprisonment in exchange for appellant being agreeable to tender a plea of guilty (guilty plea) relative to eight (8) counts of the criminal offense (offense) Robbery, five (5) counts of the offense Criminal Conspiracy (Conspiracy), one (1) count of the offense Simple Assault, six (6) counts of the offense Possessing Instrument of Crime (PIC), two (2) counts of the offense Terroristic Threats, and one (1) count of the offense Fleeing or Attempting to Elude a Police Officer (Fleeing) prior to appellant having tendered, and Giovanni O. Campbell, Trial Judge (hereafter Judge Campbell) having accepted a guilty plea relative to said count(s) of the said offense(s) at the conclusion of a guilty plea hearing that Judge Campbell conducted on appellant’s behalf? 4. Whether Giovanni O. Campbell, Trial Judge (hereafter Judge Campbell) failed to ensure appellant was aware of each essential element that comprised the individual criminal offense (offense)(s) filed against appellant, via an on-record plea of guilty (guilty plea) colloquy, during a guilty plea hearing that he conducted on appellant’s behalf? 5. Whether Giovanni O. Campbell, Trial Judge (hereafter Judge Campbell) failed to ensure appellant was aware of the possibility that any sentence(s) imposed against appellant could be found to be served consecutively, via an on-record plea of guilty (guilty plea) colloquy, during a guilty plea hearing that he conducted on appellant’s behalf? 6. Whether Giovanni O. Campbell, Trial Judge (hereafter Judge Campbell) improperly accepted from appellant several plea of guilty (guilty plea)(s) that were not knowingly, intelligently, or voluntarily tendered at the conclusion of a guilty plea hearing that he conducted on appellant’s behalf? Appellant’s Brief at 4-5. -6- J-S40006-20 Our standard of review of an order denying PCRA relief is whether the record supports the PCRA court’s determination, and whether the PCRA court’s determination is free of legal error. Commonwealth v. Phillips, 31 A.3d 317 , 319 (Pa. Super. 2011). The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record. Id. We first note that although Appellant identified six issues in his Statement of Questions Involved, the Argument section of his brief addresses and presents arguments in support of only three issues. Thus, the remaining issues raised in his Statement of Questions Involved are waived. See Commonwealth v. Phillips, 141 A.3d 512 , 522 (Pa. Super. 2016) (“[I]ssues raised in a Brief’s Statement of Questions Involved but not developed in the Brief’s argument section will be deemed waived.”). In his first issue addressed in the Argument section of his brief, Appellant asserts the following, which we have set forth herein verbatim: I. Appellant would not have tendered a plea of guilty (guilty plea) relative to eight (8) counts of the criminal offense (offense) robbery, five (5) counts of the offense criminal conspiracy (conspiracy), one (1) count of the offense simple assault, six (6) counts of the offense possessing instrument of crime (pic), two (2) counts of the offense terroristic threats, and one (1) count of the offense fleeing or attempting to elude a Police officer (fleeing) at the conclusion of a guilty plea hearing that Giovanni O. Campbell, trial judge (hereafter Judge Campbell) conducted on his behalf, if not for Evan Hughes, Esq., Trial Counsel, (hereafter Attorney Hughes) having made to him a promise relative to him receiving a pre-determined sentence term of seven and a half (7 1/2) years to fifteen (15) years imprisonment in exchange for him being agreeable to tender a guilty plea relative to said count(s) of said offense(s) prior to said guilt, plea hearing[.] -7- J-S40006-20 Appellant’s Brief at 18 (full capitalization omitted). The record reflects that Appellant did not raise this issue in his pro se PCRA petition. PCRA Petition, 11/7/18, at 4. Appointed counsel did not file an amended PCRA petition. “It is well-settled that issues not raised in a PCRA petition cannot be considered on appeal.” Commonwealth v. Ousley, 21 A.3d 1238 , 1242 (Pa. 2011) (quotation and citations omitted); see also Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”). Appointed counsel, however, filed a Turner/Finley2 letter in support of his motion to withdraw, and therein addressed Appellant’s potential claims. In the Turner/Finley letter, counsel identifies claims of trial counsel’s ineffectiveness for permitting Appellant to enter an open guilty plea and for trial counsel being ineffective “where a guilty plea was unlawfully induced.” Turner/Finley Letter, 7/11/19, at unnumbered 5. As such, we decline to find this issue waived. When considering an allegation of ineffective assistance of counsel (“IAC”), counsel is presumed to have provided effective representation unless the PCRA petitioner pleads and proves that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable basis for his or her conduct; and (3) petitioner was prejudiced by counsel’s action or omission. ____________________________________________ 2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), (setting forth the requirements for counsel seeking to withdraw in collateral proceedings). -8- J-S40006-20 Commonwealth v. Spotz, 84 A.3d 294 , 311 (Pa. 2014). “In order to meet the prejudice prong of the ineffectiveness standard, a 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.’” Commonwealth v. Reed, 42 A.3d 314 , 319 (Pa. Super. 2012). A claim of ineffective assistance of counsel will fail if the petitioner does not meet any one of the three prongs. Commonwealth v. Simpson, 66 A.3d 253 , 260 (Pa. 2013). “The burden of proving ineffectiveness rests with Appellant.” Commonwealth v. Rega, 933 A.2d 997 , 1018 (Pa. 2007). With regard to entry of an allegedly involuntary plea, this Court has explained: In order for a guilty plea to be constitutionally valid, the guilty plea colloquy must affirmatively show that the defendant understood what the plea connoted and its consequences. This determination is to be made by examining the totality of the circumstances surrounding the entry of the plea. Thus, even though there is an omission or defect in the guilty plea colloquy, a plea of guilty will not be deemed invalid if the circumstances surrounding the entry of the plea disclose that the defendant had a full understanding of the nature and consequences of his plea and that he knowingly and voluntarily decided to enter the plea. Commonwealth v. Yeomans, 24 A.3d 1044 , 1047 (Pa. Super. 2011). Additionally, a written plea colloquy that is read, completed, signed by the defendant, and made part of the record, may serve as the defendant’s plea colloquy when supplemented by an oral, on-the-record examination. Commonwealth v. Morrison, 878 A.2d 102 , 108-109 (Pa. Super. 2005) (citing Pa.R.Crim.P. 590, cmt.). “Our law presumes that a defendant who -9- J-S40006-20 enters a guilty plea was aware of what he was doing. He bears the burden of proving otherwise.” Commonwealth v. Pollard, 832 A.2d 517 , 523 (Pa. Super. 2003) (internal citation omitted). In addressing this issue, the PCRA court explained: Appellant’s claim that counsel was ineffective in permitting Appellant to enter open guilty pleas is without merit. The record demonstrates that the Commonwealth offered Appellant a global plea offer of 15-30 years, which Appellant declined after consultation with counsel. Instead, Appellant elected to enter guilty pleas and permit the [c]ourt to determine sentence. Appellant was advised and agreed in writing and orally under oath that he was entering open pleas. Appellant also understood that he was giving up the right to go to trial, whether before the [c]ourt or jury. The guilty pleas were entered into knowingly, intelligently and voluntarily, and were not induced by promises or threats. The Superior Court has explained: Our law presumes that a defendant who enters a guilty plea was aware of what he was doing. He bears the burden of proving otherwise. * * * The long standing rule of Pennsylvania law is that a defendant may not challenge his guilty plea by asserting that he lied while under oath, even if he avers that counsel induced the lies. A person who elects to plead guilty is bound by the statements he makes in open court while under oath and may not later assert grounds for withdrawing the plea which contradict the statements he made at his plea colloquy. * * * A defendant who elects to plead guilty has a duty to answer questions truthfully. We cannot permit a defendant to postpone the final disposition of his case by lying to the court and later alleging that his lies were induced by the prompting of counsel. - 10 - J-S40006-20 Commonwealth v. Pollard, 832 A.2d 517 , 523-24 (Pa. Super. 2003) (citations omitted). Here, the record upon which we must rely consists of Defendant’s written and oral colloquy acknowledging in detail all the rights he was giving up, including his right to trial, that he understood those rights and the decision he was making, and that his decisions were not the result of coercion or promises. Accordingly, there is no basis for finding that counsel was ineffective in relation to Appellant’s knowing and voluntary decision to reject the Commonwealth’s offer, give up the right to trial, and instead enter open guilty pleas. * * * As discussed above, Appellant is bound by his sworn written and oral answers to questions regarding the voluntariness of his guilty plea. In these cases Appellant was specifically colloquized: THE COURT: And has anyone forced you or coerced to plead guilty in this case today? THE DEFENDANT: No. THE COURT: Anyone made you any promises to get you to plead guilty in this case? THE DEFENDANT: No. Appellant also stated in the written colloquies, which he acknowledged and signed, that: “Nobody promised me anything or threatened me or forced me to plead guilty. I, myself, have decided to plead guilty.” Accordingly, there is no merit to the claim that the guilty pleas were unlawfully induced. PCRA Court Opinion, 11/12/19, at 4-5. We agree with the PCRA court’s conclusion. In accepting Appellant’s plea, the trial court conducted an on-the-record guilty plea colloquy. N.T., - 11 - J-S40006-20 3/22/16, at 6-19. Appellant also executed a written guilty plea colloquy. The totality of circumstances surrounding the pleas supports the conclusion that Appellant knowingly, voluntarily, and intelligently entered his guilty pleas and that the pleas were not induced by promises of a particular sentence. Moreover, Appellant has failed to carry the burden of proving otherwise. Pollard, 832 A.2d at 523 . Accordingly, Appellant has failed to establish that trial counsel was ineffective and induced his guilty plea. Appellant is entitled to no relief on this claim. In Appellant’s next claim presented in the Argument section of his brief, he argues that: Appellant would not have tendered a plea of guilty (guilty plea) relative to eight (8) counts of the criminal offense (offense) robbery, five (5) counts of the offense criminal conspiracy (conspiracy), one (1) count of the offense simple assault, six (6) counts of the offense possessing instrument of crime (pic), two (2) counts of the offense terroristic threats, and one (3) count of the offense fleeing or attempting to elude police officer (fleeing) at the conclusion of a guilty plea hearing that Giovanni O. Campbell, trial judge (hereafter Judge Campbell) conducted on his behalf, if not for Judge Campbell having failed to ensure he was aware of each essential element that comprised said individual offense(s), via an on-record guilty plea colloquy, during said guilty plea hearing. Appellant’s Brief at 21 (verbatim). As noted supra, the trial court conducted an oral colloquy when taking Appellant’s open pleas. Moreover, Appellant executed written colloquies as well. As the PCRA court observed: “Appellant acknowledged in the written and oral colloquies that the elements of the crimes to which he was pleading - 12 - J-S40006-20 guilty had been explained to him. Written Colloquies, p.4; NT 3/22/16, 16- 17. Appellant cannot now repudiate his signed and sworn statements.” PCRA Court Opinion, 11/12/19, at 5. We agree with the PCRA court’s conclusion. We further note that during the guilty plea hearing, the trial court addressed each case and read the facts of each case into the record. Appellant confirmed the facts and entered a guilty plea. N.T., 3/22/16, at 19-32. Thus, Appellant is entitled to no relief on this claim. In his final claim addressed in the Argument section of his Brief, Appellant argues: III. Appellant would not have tendered a plea of guilty (guilty plea) relative to eight (8) counts of the criminal offense (offense) robbery, five (5) counts of the offense criminal conspiracy (conspiracy), one (1) count of the offense simple assault, six (6) counts of the offense possessing instrument of crime (pic), two (2) counts of the offense terroristic threats, and one (1) count of the offense fleeing or attempting to elude a police officer (fleeing) at the conclusion of a guilty plea hearing that Giovanni O. Campbell, trial judge (hereafter Judge Campbell) conducted on his behalf, if not for Judge Campbell having failed to ensure he was aware of the possibility that any sentence(s) imposed against him could be found to be served consecutively, via an on-record guilty plea colloquy, during said guilty plea hearing[.] Appellant’s Brief at 26 (verbatim). We first note that Appellant has failed to preserve this issue by raising it in his pro se PCRA petition. Moreover, it was not raised in appointed- counsel’s Turner/Finley letter. As such, this issue is waived. See Ousley, 21 A.3d at 1242 (“It is well-settled that issues not raised in a PCRA petition - 13 - J-S40006-20 cannot be considered on appeal.”) (quotation and citations omitted); see also Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”). Because Appellant did not raise these issues before the PCRA court, he has waived them on appeal. Moreover, even if this issue had not been waived, we would find no merit to Appellant’s claims. During the guilty plea colloquy, the trial court explained to Appellant the potential sentences for each conviction. N.T., 3/22/16, at 13- 14. The trial court also advised Appellant: “If you were to be sentenced or receive the maximum sentences on each one of those counts, the aggregate would be 279 years $1,700,000 fine.” Id. at 14. Appellant stated that he understood that explanation. Id. As such, Appellant was made aware that he could be sentenced to serving consecutive sentences. Appellant is entitled to no relief on this claim. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 1/26/2021 - 14 -

2020-11-20 19:16:59.713433+00

Raymon Gerard and Frances Gerard, Petitioners, v. Commissioner of Internal Revenue, Respondent Gerard v. Commissioner Docket No. 86042 United States Tax Court January 26, 1962, Filed *202 Decision will be entered under Rule 50. Petitioners' young daughter was afflicted with cystic fibrosis and, upon the advice of a physician, they installed a central air-conditioning unit in their home at a cost of $ 1,300 so she could have the necessary clean dry air to breathe. Held, under the facts the $ 1,300 was a medical care expenditure under section 213, I.R.C. 1954, and, to the extent the unit did not increase the value of the home, it was deductible as medical expense. Raymon Gerard, pro se. Norton L. Armour, Esq., for the respondent. Mulroney, Judge. MULRONEY *826 Respondent determined a deficiency in petitioners' 1958 income tax in the amount of $ 333.45. The only question is whether petitioners are entitled to a medical expense deduction for the total or some part of $ 1,300 expended for installing a central air-conditioning unit in their residence. FINDINGS OF FACT. Some of the facts are stipulated and they are found accordingly. Petitioners are husband and wife residing at 2 Clearview Drive, Framingham Centre, Massachusetts. The income tax return for the taxable year 1958 was filed with the district director of internal revenue for the district of Massachusetts. *827 Petitioners have a daughter who was born with cystic fibrosis, a disease for which there is no known cure. During the year 1958 petitioners' daughter was 9 years old. Prior to their move to Massachusetts*204 in 1958 petitioners lived in the State of New Jersey, and while living there traveled to Boston approximately three times a year so their daughter could be examined and cared for by Harry Shwachman, M.D., a leading authority on the disease of cystic fibrosis. Doctor Shwachman has cared for petitioners' daughter since she was 3 years old. Because petitioners wanted to be closer to the doctor, petitioner, Raymon Gerard, changed jobs and he and his family moved to Massachusetts. Petitioners' daughter does not attend school and is restricted to her home. The disease of cystic fibrosis in petitioners' daughter has resulted in cystic fibrosis of the pancreas with extensive interference with her pulmonary ventilation, which makes it difficult for her to carry out physical activities. She also shows a great loss of salt through her sweat, which loss appears to be as much as five times that of a normal youngster. During hot weather and during febrile episodes there is a danger that she may lose sufficient salt through her sweat to result in a "salt depletion." The condition of the lungs of the petitioners' daughter would be worsened by exposure to a dry, dusty environment, or by an atmosphere*205 which would cause an increased irritation to her bronchial mucosa. In cystic fibrosis the mucous secretion in the lungs is extremely tenacious. Since there is no cure, as yet, for cystic fibrosis, the attempt of physicians is to prevent further extension of the pulmonary disease process and the abnormal loss of salt by improving the environment of the afflicted children. Salt loss has resulted in the death of a number of children. The majority of youngsters that succumb with cystic fibrosis at the present time succumb as a result of the advance of chronic pulmonary infection. One of the methods of combating the progress of the disease is the maintenance of a relatively constant temperature and a high humidity. Dr. Shwachman recommended to petitioners that they install an air-conditioning unit as a means by which the humidity and temperature could be controlled in the petitioners' home. In 1958 petitioners installed in their home a central air-conditioning unit at a cost of $ 1,300, which installation increased the value of their home in the amount of $ 800. Petitioners deducted the $ 1,300 as medical expense in their 1958 return. Respondent determined the expenditure was not*206 deductible as a medical expense "within the meaning of Section 213 of the Internal Revenue Code of 1954." This determination gives rise to the deficiency now in question. *828 OPINION. Section 213(a)1 as here applicable allows "as a deduction the * * * amounts of the expenses paid during the taxable year, * * * for medical care of the taxpayer, his spouse, or a dependent." Section 213(e) defines the term "medical care" as follows: SEC. 213. MEDICAL, DENTAL, ETC., EXPENSES. (e) Definitions. -- For purposes of this section -- (1) The term "medical care" means amounts paid -- (A) for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body (including amounts paid for accident or health insurance), or (B) for transportation primarily for and essential to medical care referred to in subparagraph (A). It is well established that some form of *207 control of temperature and humidity was a medical necessity in petitioners' home. Their daughter's illness made it dangerous for her to be exposed to dry, dusty air. The evidence shows petitioners had tried a room air-conditioning unit in their home in New Jersey but it was not satisfactory. 2 This restricted the child to one room for the entire day in order to get the beneficial effects and it was bad for her psychologically. It was the doctor who advised petitioners it would be better for the child to have the central unit so she could have the whole home as her restricted area. Children afflicted with cystic fibrosis have a special diet and they are treated with antibiotics given by mouth and by aerosols and they sleep every night in a tent which has additional antibiotics. *208 We think the expenditure of $ 1,300 for installing the air-conditioning unit was an expenditure for medical care for petitioners' dependent, within the scope of the above-quoted statute. But there is another statute which must be considered because of the nature of this expenditure. Section 263(a)(1) provides in part: "No deduction shall be allowed for * * * Any amount paid out * * * for permanent improvements or betterments made to increase the value of any property." The general rule, expressed in respondent's regulation and numerous cases, is that a medical care expenditure for what is a capital expenditure in the nature of a permanent improvement to the taxpayer's home is not deductible as medical expense. Frank S. Delp, 30 T.C. 1230">30 T.C. 1230; John L. Seymour, 14 T.C. 1111">14 T.C. 1111; sec. 1.213-1(e)(1)(iii), Income Tax Regs. However, it has been held, and respondent *829 admits, that the mere fact that a medical care expenditure is also a capital expenditure is not always sufficient to disqualify it for medical deduction. When the medical care expenditure is for a permanent addition to the taxpayer's home, deductibility as a *209 medical expense depends upon whether it increases the value of the home. In Berry v. Wiseman, 174 F. Supp. 748">174 F. Supp. 748 (W.D. Okla. 1958), the court held the cost ($ 4,400) of installing an elevator in taxpayer's home was deductible as medical expense. There the housewife petitioner suffered from acute coronary insufficiency and the elevator was installed upon the advice of her physician. The court found that the elevator was permanent but "that it did not have the effect of increasing the value of the property." In Rev. Rul. 59-411, 2 C.B. 100">1959-2 C.B. 100, 3 respondent announced he would follow the case of Berry v. Wiseman, supra, and his ruling indicates the significant fact in that case was the finding that the installation of the elevator did not increase the value of the house. *210 Prior to the above ruling, we had decided the Delp case in 1958. While the issue in Frank S. Delp, supra, was different (whether the electric air cleaner was permanently affixed to the home), there is an expression in the opinion indicating the extent of value increase is to measure medical deductibility. There we said speaking generally of medical care expenditures that represent permanent improvements to property: Such expenditures, to the extent the permanent improvement of the asset increases the value of the property, at least in a sense compensate for the expense of such improvement. Respondent admits on brief where the taxpayer is able to show the medical care expenditure in the nature of a permanent addition to the residence does not increase the value of the home, it qualifies for medical deduction. We think it necessarily follows that where the taxpayer is able to show such increase in value is less than the expenditure, the amount in excess of value enhancement is deductible *830 as medical expense. Here the parties stipulate the cost of installing the air-conditioning unit was $ 1,300 and the unit increased the value of the*211 home in the sum of $ 800. It follows that the balance, or $ 500, qualifies for medical deduction. We so hold. Decision will be entered under Rule 50. Footnotes

2023-07-27 06:00:19.268904+00

https://www.mspb.gov/decisions/nonprecedential//STEVENS_MICHAEL_G_AT_1221_14_0743_W_2_FINAL_ORDER_2053579.pdf

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MICHAEL G. STEVENS, DOCKET NUMBER Appellant, AT-1221-14-0743-W-2 v. DEPARTMENT OF THE AIR FORCE, DATE: July 26, 2023 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Michael G. Stevens, Daphne, Alabama, pro se. Filomena Gehart and William V. Cochrane, Jr., Eglin Air Force Base, Florida, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied his request for corrective action in this individual right of action (IRA) appeal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).  2 the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to address the appellant’s allegations of whistleblower reprisal under 5 U.S.C. § 2302 (b)(9), we AFFIRM the initial decision. BACKGROUND ¶2 The appellant filed an IRA appeal alleging that in reprisal for 31 alleged protected disclosures that he made between March 2005 and June 6, 2012, and more recently between July 10, 2012, and May 31, 2013, he was subjected to 13 personnel actions, which occurred between May 13, 2013, and May 13, 2014. Stevens v. Department of the Air Force, MSPB Docket No. AT-1221-14-0743- W‑1, Initial Appeal File (IAF), Tab 1. 2 He did not request a hearing. Id. at 11 . The administrative judge found that the appellant had raised nonfrivolous allegations of Board jurisdiction and issued a detailed jurisdictional order identifying the specific disclosures and personnel actions over which the appellant had established Board jurisdiction. IAF, Tab 26. ¶3 After affording the parties an opportunity to file close-of-record submissions, the administrative judge issued an initial decision, denying the 2 The appellant’s initial appeal was dismissed without prejudice on September 1, 2016, and automatically refiled 30 days later. IAF, Tab 34.  3 appellant’s request for corrective action. Stevens v. Department of the Air Force, MSPB Docket No. AT-1221-14-0743-W-2, Tab 6, Initial Decision (ID). The administrative judge found that the appellant proved by preponderant evidence that he made a protected disclosure in March 2005, when he reported a Federal Travel Regulations violation comprising the denial of his travel request for a 3-day temporary duty assignment in Maitland, Florida. ID at 7 -8. However, the administrative judge found that the appellant failed to prove that this protected disclosure in 2005 was a contributing factor in the agency’s personnel actions, the earliest of which occurred 8 years later. ID at 8. The administrative judge also found that the agency had strong evidence in support of its personnel actions, which stemmed from a Headquarters Command notification that funding for the appellant’s position and many others would be eliminated. Id. ¶4 The administrative judge further found that the appellant failed to prove by preponderant evidence that his remaining protected disclosures were protected. The administrative judge found that the appellant’s alleged disclosures 6, 9-10, 12, and 19-20 concerned complaints to various individuals about his reassignment from a GS-12 Physical Scientist (Environmental) position to a GS-11 Environmental Engineer position in the Compliance section, as part of a reorganization following the headquarters notification that funding for the appellant’s position and many others would be eliminated. ID at 5, 9. The administrative judge found that the appellant failed to prove that these alleged disclosures amounted to a disclosure of one of the categories of wrongdoing set forth in 5 U.S.C. § 2302 (b)(8) because they merely amounted to questions and concerns regarding the agency’s decision to reassign him and/or disagreement over the agency’s decision to abolish his position. ID at 9-12. ¶5 The administrative judge found that the appellant’s alleged disclosures 13-16, 21, 24-25, and 27 involved his stated concerns regarding an Environmental Restoration Program (ERP) manager’s potential conflict of interest in that he believed that the ERP Manager was requesting that certain contractors perform  4 work outside of their scope and, as a result, the ERP Manager might treat them more favorably when awarding a contract in the future if she subsequently served on the Performance Base Contract Board (PCB). ID at 5, 12‑13. The administrative judge found that such disclosures were not protected because a reasonable person would not have believed that they amounted to a disclosure of any of the categories of wrongdoing under section 2302(b)(8) to the extent the disclosures were speculative in nature, presupposed that the ERP Manager would serve on the PCB and the subject contractor would bid on a contract, and, ultimately, disclosed a conflict of interest that might never materialize. ID at 12-14. ¶6 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has opposed the appellant’s petition, and the appellant has filed a reply. PFR File, Tabs 3-4. DISCUSSION OF ARGUMENTS ON REVIEW ¶7 On petition for review, the appellant largely reiterates his alleged disclosures without explaining how they amount to a disclosure of any of the categories of wrongdoing identified in 5 U.S.C. § 2302 (b)(8). PFR File, Tab 1 at 7-19. He does not identify any error in the administrative judge’s finding that his disclosures about his reassignment (disclosures 6, 9-10, 12, and 19-20) were not protected because they amounted to mere disagreement with the agency’s decision to abolish his position 3 or that his disclosures concerning the ERP 3 The appellant’s alleged disclosures 6, 9, and 10 involved disclosures made in the context of a grievance. IAF, Tab 26 at 6-7. The Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199, 126 stat. 1465, extended the Board’s jurisdiction over IRA appeals to claims of reprisal for engaging in protected activity by filing a complaint or grievance seeking to remedy whistleblower reprisal under 5 U.S.C. § 2302 (b)(8). 5 U.S.C. §§ 1221 (a), 2302(b)(9)(A)(i); Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365 , ¶ 7 (2013). Here, however, the appellant has not proven, or even argued, that his grievances involved remedying a violation of 5 U.S.C. § 2302 (b)(8). Thus, the administrative judge properly analyzed whether these alleged disclosures amounted to protected disclosures under 5 U.S.C. § 2302 (b)(8).  5 Manager’s alleged potential conflict of interest (disclosures 13‑16, 21, 24‑25, and 27) were not protected because they were too speculative. Nor does he challenge the administrative judge’s finding that he failed to prove that his 2005 disclosure regarding travel reimbursement was a contributing factor in any of the agency’s personnel actions. Id. at 3 . To the extent the appellant has not identified any specific error in the administrative judge’s analysis, the Board will not embark upon a complete review of the record. See Baney v. Department of Justice, 109 M.S.P.R. 242 , ¶ 7 (2008); Tines v. Department of the Air Force, 56 M.S.P.R. 90 , 92 (1992). ¶8 On review, the appellant argues that the administrative judge erred generally in finding that his disclosures were not protected because he previously found that they were protected in a July 26, 2016 jurisdictional order. PFR File, Tab 1 at 4-6. He also argues that the agency and/or the administrative judge failed to show that his disclosures were not protected and/or were not a contributing factor in the agency’s personnel actions. Id. at 4, 6 . Such arguments misconstrue the relevant burdens of proof in an IRA appeal. In his jurisdictional order, the administrative judge did not find that the appellant proved the merits of his appeal. Rather, he found that the appellant raised nonfrivolous allegations that he made a protected disclosure that was a contributing factor in the agency’s decision to take a personnel action, and thus established Board jurisdiction, entitling him to a hearing, if requested. IAF, Tab 26. Because the appellant did not request a hearing, the administrative judge properly issued a close -of-record order, notifying the appellant of his ultimate burden of proving the merits of his appeal by establishing those same elements by preponderant evidence. 4 IAF, Tab 26 at 20; see 5 C.F.R. § 1201.57 (c)(4). The appellant’s argument that the agency and/or the administrative judge failed to show that his disclosures were 4 The administrative judge also had previously notified the appellant regarding these burdens. IAF, Tab 2.  6 not protected is similarly unavailing because it is the appellant’s burden to prove that he made a protected disclosure that was a contributing factor in a personnel action. See 5 U.S.C. § 1221 (e)(1); Lu v. Department of Homeland Security, 122 M.S.P.R. 335 , ¶ 7 (2015). ¶9 On review, the appellant also contends that the administrative judge erred in using improper terminology when he referred to the appellant’s disclosures as relating to his reassignment instead of a downgrade or change to low er grade. PFR File, Tab 1 at 4. However, any such error does not provide a basis for reversal to the extent the appellant has not explained how this error was prejudicial and the record reflects that, although the administrative judge referred to it as a reassignment, he acknowledged that the reassignment was from a GS -12 Physical Scientist position (Environmental) to a GS-11 Environmental Engineer position. ID at 5, 9; see Panter v. Department of the Air Force, 22 M.S.P.R. 281 , 282 (1984) (stating that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversing an initial decision). ¶10 Regarding the appellant’s alleged protected disclosures concerning the ERP Manager’s alleged conflict of interest (disclosures 13-16, 21, 24-25, and 27), the appellant asserts that the administrative judge discussed, but did not identify, disclosures 21, 25, and 27 by number, and failed to discuss certain other alleged disclosures. PFR File, Tab 1 at 5. In particular, he contends that the administrative judge did not identify disclosure 13, but acknowledges that the administrative judge quoted a portion of this email disclosure in the initial decision. Id. Regarding disclosure 14, the appellant asserts that the administrative judge did not identify this disclosure and incorrectly described the contents of his supervisor’s email response to this alleged disclo sure. Id. However, we have reviewed this disclosure and find that it disclosed the same essential facts as disclosure 13, which the administrative judge quoted, and the administrative judge properly characterized the appellant’s supervisor’s reply. ID at 13, IAF, Tab 14 at 39-40, 43-44. The appellant also contends that the  7 administrative judge did not identify or discuss disclosure 24. PFR File, Tab 1 at 5. However, this disclosure amounts to a forwarded email of the appellant’s disclosure 21, which the administrative judge referenced. ID at 13 n.6; IAF, Tab 13 at 42, Tab 26 at 11. In any event, because the appellant’s disclosures concerning the ERP Manager’s alleged conflict of interest all disclosed the same essential facts, any failure on the administrative judge’s part to specifically discuss the details of each disclosure does not provide a basis for reversal because the analysis in the initial decision also would apply to each of these alleged disclosures. ¶11 The appellant’s alleged disclosure 16 was made to the Department of Defense Inspector General (IG). Although the administrative judge analyzed this disclosure under 5 U.S.C. § 2302 (b)(8), he did not analyze whether it amounted to protected activity under section 2302(b)(9)(C), which includes disclosing information to an agency’s IG. 5 Therefore, we modify the initial decision to address this issue. Under the broadly worded provision of 5 U.S.C. § 2302 (b)(9)(C), disclosing information to an agency’s IG is protected regardless of content, as long as the disclosure is made “in accordance with applicable provisions of law.” Fisher v. Department of the Interior, 2023 MSPB 11 , ¶ 8. Thus, we find that the appellant proved by preponderant evidence that he engaged in protected activity when he disclosed information on January 10, 2013, to the agency’s IG office by filing a hotline complaint concerning the ERP Manager’s alleged conflict of interest. IAF, Tab 14 at 52-56. 5 During the pendency of this appeal, the National Defense Authorization Act for Fiscal Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on December 12, 2017. Section 1097 of the NDAA amended various provisions of Title 5 of the U.S. Code. In particular, it amended 5 U.S.C. § 2302 (b)(9)(C) to include disclosing information to the Inspector General “or any other component responsible for internal investigation or review.” 131 Stat. 1283 , 1616. However, the result here would be the same under both pre- and post-NDAA law because the appellant disclosed information to the agency’s IG.  8 ¶12 However, we find that the appellant failed to prove by preponderant evidence that his disclosing information to the IG was a contributing factor in any of the six agency personnel actions at issue in this appeal. 6 The appellant has not offered any evidence establishing that the relevant deciding officials were aware that he filed an IG complaint. Rather, he asserts on review that the IG’s email response to him, which indicated that the IG had referred his concerns to the appropriate authorities within the Department of Defense for information and any action they deemed appropriate, IAF, Tab 14 at 57, “most likely raised a few feathers” with management, PFR File, Tab 1 at 15. Such a bare statement fails to prove that the appellant’s supervisor or human resources specialist or any other individual involved in the personnel actions was aware of his IG complaint. See Jones v. Department of the Treasury, 99 M.S.P.R. 479 , ¶ 8 (2005) (finding that an appellant’s insinuation and unsubstantiated speculation that an individual knew of his prior whistleblowing activity did not amount to a nonfrivolous allegation of contributing factor). Additionally, although the record below reflects that the appellant informed the legal office and Captain A.N. that he had contacted the IG and sent them a copy of his IG complaint, such individuals do not appear to have been involved in making the decision to take the relevant personnel actions. 7 6 In the jurisdictional order, the administrative judge found that the appellant established Board jurisdiction over the following personnel actions: (1) on June 4, 2013, his supervisor informed him that he would no longer be the designated point of contact for a contractor and took away other duties; (2) on June 12, 2013, the appellant’s supervisor detailed him to perform GS-11 Compliance duties; (3) in June/August 2013, the appellant’s supervisor denied his request for an alternative work schedule; (4) on November 26, 2013, the appellant’s detail to GS -11 duties was extended to a date not to exceed February 2, 2014; (5) on February 2, 2014, the appellant’s GS-11 detail ended and he was returned to his former GS-12 position, however, between February 2 and May 6, 2014, his actual duties remained those of a GS-11 Environmental Engineer; and (6) on or about April 10, 2014, a human resources employee informed the appellant that his former position had been abolished; IAF, Tab 26 at 14-17. 7 We are unable to discern from the appellant’s lengthy submissions below any specific argument concerning whether the officials involved in taking the relevant personnel actions were aware of his IG complaint. However, the appellant bears the burden of  9 IAF, Tab 12 at 16, Tab 13 at 54-56. Thus, the appellant has not established contributing factor via the knowledge/timing test. See 5 U.S.C. § 1221 (e)(1) (explaining that an employee may demonstrate contributing factor through circumstantial evidence that the official taking the personnel action knew of the protected activity and the personnel action occurred within a period of time such that a reasonable person could conclude that the protected activity was a contributing factor in the personnel action). ¶13 Further, the appellant has not proven contributing factor considering the strength of the agency’s evidence and the lack of motivation on the part of the individuals who took the personnel actions. Rumsey v. Department of Justice, 120 M.S.P.R. 259 , ¶ 26 (2013) (stating that if an appellant fails to satisfy the knowledge/timing test, the Board must consider other evidence, suc h as that pertaining to the strength or weakness of the agency’s reasons for taking the personnel action, whether the whistleblowing was personally directed at the proposing or deciding official, and whether those individuals had a desire or motive to retaliate against the appellant). The appellant’s IG complaint concerned an alleged conflict of interest on an ERP manager’s part and was not directed at his supervisor or the human resources specialist who took the relevant personnel actions. Thus, we are unable to discern a motive to retaliate on the part of the relevant officials. Further, as the administrative judge found, the agency had strong evidence in support of its actions, which stemmed from a headquarters-directed reorganization in which the appellant’s position was abolished. Accordingly, we modify the initial decision to find that the appellant has not proven by preponderant evidence that his protected activity in disclosing proving contributing factor, 5 U.S.C. § 1221 (e)(1); 5 C.F.R. § 1201.57 (c)(4), and it is not the Board’s obligation to pore through the record to construe and make sense of allegations set forth at various parts of a voluminous case file, see Keefer v. Department of Agriculture, 92 M.S.P.R. 476 , ¶ 18 n.2 (2002).  10 information to the IG was a contributing factor in any of the agency’ s personnel actions. NOTICE OF APPEAL RIGHTS 8 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicab le to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general. As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 8 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.  11 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination. This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on  12 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court‑appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must fil e with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012. This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or  13 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 9 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of pa rticular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 9 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510 .  14 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ for Jennifer Everling Acting Clerk of the Board Washington, D.C.