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733 N.W.2d 921 (2007)
2007 WI App 135
Paul E. SPENCER, Jr., Plaintiff-Respondent,
v.
John KOSIR, Defendant-Appellant.[]
No. 2006AP1691.
Court of Appeals of Wisconsin.
Submitted on Briefs March 5, 2007.
Opinion Filed March 27, 2007.
*923 On behalf of the defendant-appellant, the cause was submitted on the briefs of J. Bushnell Nielsen and Bridget M. Hubing of Reinhart Boerner Van Deuren, S.C. of Waukesha.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Ralph W. Koopman of Koopman Law Office of Eagle River.
Before CANE, C.J., and HOOVER, P.J., and PETERSON, J.
¶ 1 CANE, C.J.
John Kosir appeals a judgment establishing Paul Spencer's right to an easement across Kosir's property. Kosir argues the circuit court erred by finding the easement had not been abandoned and that the court erred in its determination of the location and width of the easement. We disagree with Kosir and affirm the judgment.
BACKGROUND
¶ 2 Kosir and Spencer own adjacent lots. Before Kosir's purchase in 1999, there were no significant improvements to either property. Spencer's property does not have access to the town road, but the deed reflects an easement across Kosir's property. Spencer only knew of the lot being visited twice. First, Spencer's mother visited the property in 1972 with her aunt who was the recorded titleholder at that time. Second, Spencer visited the property in 2003 with his attorney.
¶ 3 The easement in question has been continuously recorded since 1936. The easement states ". . . excepting and reserving in the grantors, a right of way for road purposes across the lands herein-above described." No efforts were made to establish and use the easement until the 1990's when Spencer's mother, who then owned the property, made a number of unsuccessful attempts to contact Kosir's predecessors in title to reach an agreement on the location of the easement road needed to comply with a DNR managed forest lands agreement she entered.
¶ 4 In an effort to comply with the managed forest lands agreement, Spencer retained an attorney in 2003 to assist him with the easement. Kosir and Spencer subsequently met, at which time Kosir refused to permit a logging road on his property. In December 2004, Spencer filed this lawsuit seeking a judicial declaration confirming the existence and validity of Spencer's easement rights and a determination of an appropriate width and location of the easement.
¶ 5 Both Kosir and Spencer moved for summary judgment. The circuit court granted summary judgment to Spencer, establishing an easement twenty feet wide with a road no wider than twelve feet. This roadway would be located along the eastern edge of Kosir's property and adjacent to Spencer's property. The court ordered Kosir to remove all of his personal property and/or improvements from the easement within sixty-days. The court's order also permits Spencer to cut down trees to clear a path for the easement. In turn, Spencer is required to compensate Kosir for the stumpage value of the harvested trees.
DISCUSSION
¶ 6 The grant or denial of a motion for summary judgment is a matter of law this court reviews de novo. Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524, 536, 563 N.W.2d 472 (1997). We review summary judgment without deference to the circuit court but benefiting from its analysis. *924 Green Spring Farms v. Kersten, 136 Wis. 2d 304, 314-15, 401 N.W.2d 816 (1987).
¶ 7 Kosir argues the nonuse of the easement for roughly seventy years was sufficient to establish that the easement had been intentionally abandoned. Alternatively, Kosir argues the circuit court incorrectly expanded the purpose and scope of the easement in creating a road access. We disagree.
¶ 8 Kosir relies upon Burkman v. New Lisbon, 246 Wis. 547, 18 N.W.2d 4 (1945), to support his nonuse argument. However, this decision supports Spencer's position, and not Kosir's. In Burkman, the supreme court held that flowage rights acquired by prescription were lost by abandonment when the dam that created the rights was destroyed and no attempt was made to restore it. Id. at 557, 18 N.W.2d 4. In Burkman, an affirmative act, which helped persuade the court the rights were abandoned, was the fact that the dam was not rebuilt. See id. To reach this conclusion, the court relied on comments (c) and (d) of the RESTATEMENT OF THE LAW OF PROPERTY, VOL. V, § 504 (1940). Id. at 556, 18 N.W.2d 4. Comments (c) and (d) read as follows:
c. Conduct as to Use. An intentional relinquishment of an easement indicated by conduct respecting the use authorized by it constitutes an abandonment of the easement. The intention required in the abandonment of an easement is the intention not to make in the future the uses authorized by it. The benefit of an easement lies in the privilege of use of the land subject to it. There is no abandonment unless there is a giving up of that use. The giving up must be evidenced by conduct respecting the use of such a character as to indicate an intention to give up the use for the future as well as for the present. Conduct, when inconsistent with the continuance of the use, indicates an intention to give it up. The conduct required for abandonment cannot consist of verbal expressions of intention. Such expressions are effective to extinguish an easement only when they comply with the requirements of a release and operate as such. Verbal expressions of an intention to abandon are relevant, however, for the purpose of giving meaning to acts which are susceptible of being interpreted as indicating an intention to give up the use authorized by an easement, but which do not give themselves conclusively demonstrate the intention which animated them.
d. Nonuse. Conduct from which an intention to abandon an easement may be inferred may consist in a failure to make the use authorized. Nonuse does not of itself produce an abandonment no matter how long continued. It but evidences the necessary intention. Its effectiveness as evidence is dependent upon the circumstances. Under some circumstances a relatively short period of nonuse may be sufficient to give rise to the necessary inference; under other circumstances a relatively long period may be insufficient. The duration of the period of nonuse, though never conclusive as to the intention to abandon, is ordinarily admissible for the purpose of showing intention in that regard. (Emphasis added).
We agree with the circuit court that these provisions are helpful in resolving the present case. Kosir also relies on other cases involving abandonment. However, all those cases involve easements that were established and used to some extent before they were abandoned. See Povolny v. Totzke, 2003 WI App 184, 266 Wis. 2d 852, 668 N.W.2d 834. Here, however, the easement's location was never established in the first place, let alone used. Therefore, *925 case law that involves established easements which are later abandoned is not analogous.
¶ 9 We also agree with the circuit court's application of legal principles to the presented facts in this case. The court reasoned:
It is of no legal consequence that the easement road has not been constructed and used in all the years from 1936 to present. Spencer and his predecessors were under no affirmative legal obligation to construct the road when the easement was first created. It was a vacant, wooded parcel and was not occupied or used for any purpose by the owners at that time. The reservation of easement in 1936 was therefore in contemplation of a future need for legal access from the parcel to the town road. That need did not ripen until the mid-to-late 1990's when a timber harvest was contemplated by the [managed forest lands] plan for this property. At that point Spencer's mother did exercise reasonable efforts to preserve her easement claim, and Spencer himself has done so by attempting to negotiate access with Kosir and by initiating this lawsuit.
Under these circumstances, the circuit court correctly held that the easement had not been abandoned merely because it was not used for seventy years.
¶ 10 Kosir also contends that Spencer's and his predecessors' acquiescence in Kosir's home construction and other structures and allowing trees to grow on his property are affirmative acts establishing an intent to abandon the easement. We disagree. The affirmative act required to demonstrate an intent to abandon must be that of the easement holder. Mere acquiescence is not an affirmative act. The actions of the servient owner alone cannot establish the easement holder's intent to abandon. See BRUCE & ELY, THE LAW OF EASEMENTS AND LICENSES IN LAND, § 10:20 (West Group, 2001). The first time Spencer had reason to appreciate the extent of Kosir's improvements was in 2003, when he was attempting to enforce the easement. Furthermore, there is no evidence that Kosir's improvements are so extensive as to render Spencer's use of a roadway impossible.
¶ 11 Because no path was ever created or contemplated, we also reject Kosir's argument that Spencer's conduct was essentially "allowing the easement path to fall into disrepair." Furthermore, we also note that in the context of abandonment no Wisconsin court has ever held that letting an easement fall into disrepair, by itself, is sufficient to establish abandonment. See Povolny, 266 Wis. 2d 852, 668 N.W.2d 834.
¶ 12 Alternatively, Kosir challenges the court's determination that the easement covers the eastern twenty-feet of his property and limits the travel portion to no more than twelve-feet in width. Kosir argues the easement should be limited to at most an eight foot wide walking path. We disagree.
¶ 13 The easement is described as "a right of way for road purposes." The easement does not have a specified width or location. When the location of an easement is not defined, the court has the inherent power to affirmatively and specifically determine its location, after considering the rights and interests of both parties. See Werkowski v. Waterford Homes, Inc., 30 Wis. 2d 410, 417, 141 N.W.2d 306 (1966). We review equitable remedies for erroneous exercise of discretion. See Mulder v. Mittelstadt, 120 Wis. 2d 103, 115, 352 N.W.2d 223 (Ct.App.1984). The circuit court properly exercises its discretion if it applies the appropriate law and the record shows there is a reasonable factual basis for its decision. See Burkes v. Hales, 165 *926 Wis.2d 585, 590, 478 N.W.2d 37 (Ct.App. 1991).
¶ 14 The court's determination of the location and width of the easement road is supported by facts in the record. The court found the easement was recorded and enforceable, entitling Spencer to "right of way for road purposes." Because the words "road purposes" specify the type of "right of way" to be granted, we reject Kosir's reading of this language as not granting a road easement. Spencer did not need to use an alternate form of access to drive vehicles to his property nor is he limited to a walking path.
¶ 15 The court considered Kosir's interests and located the easement on the eastern edge of Kosir's property, where it would least affect Kosir's property. The court also considered Kosir's complaints about the number of trees that would have to be cut. In response to these complaints, the court limited the width of the easement road to twelve feet and ordered Spencer to pay Kosir the stumpage value of the marketable trees harvested in order to open up the easement road. Despite his assertions to the contrary, the record establishes Kosir has to move only those structures located within the easement. The court applied the appropriate law, and the record shows a reasonable factual basis for the location and width of the easement road. See id. Therefore, we conclude the court properly exercised its discretion.
Judgment affirmed.
NOTES
[] Petition for Review filed.
|
Exhibit 10.1
RESTRICTED UNIT AWARD AGREEMENT
THIS RESTRICTED UNIT AWARD AGREEMENT (this “Agreement”) is entered into as of [
] (the “Effective Date”), by and between Whitestone REIT, a Maryland real estate
investment trust (the “Company”), and [ ] (the “Participant”).
WHEREAS, the Participant is an employee of the Company or one of its
subsidiaries or affiliates and in connection therewith has rendered services and
received compensation for those services, for and on behalf of the Company
and/or its subsidiaries or affiliates; and
WHEREAS, the Company has initiated and the shareholders approved the 2008
Long-Term Equity Incentive Ownership Plan as it may be further amended from time
to time (the “Plan”), for the purpose of encouraging performance beyond the
Participant’s assigned responsibilities and focusing as well on company goals
and targets; and
WHEREAS, the Company maintains the Plan, which is incorporated into and forms a
part of this Agreement, and the Participant has been selected by the
Compensation Committee administering the Plan (the “Committee”) to receive an
award under the Plan.
NOW, THEREFORE, IT IS AGREED, by and between the Company and the Participant, as
follows:
1. Restricted Unit Award. The Participant is hereby granted [ ] Units (the
“Units”) subject to the restrictions and on the terms and conditions set forth
in this Agreement (the “Award”). Each Unit shall represent the right to receive
one (1) common share of beneficial interest, par value $0.001 per share, of the
Company (the “Common Shares”). The number of Units subject to this Award and the
number of Common Shares deliverable with respect to such Units may be adjusted
from time to time for capitalization adjustments as described in Section 4.2 of
the Plan.
2. Restriction on the Units.
(a) Period of Restriction. Except as otherwise set forth herein, all the Units
issued to the Participant pursuant to this Agreement shall be subject to a
period of restriction (the “Period of Restriction”) during which the
Participant’s rights in and to such Units shall be subject to the limitations
and obligations set forth in this Section 2.
(b) Lapse of Period of Restriction. The Period of Restriction shall lapse in
accordance with the provisions of Exhibit A, which is attached hereto and forms
part of this Agreement. During the period that the Units are subject to the
Period of Restriction, such Units are referred to herein as “Restricted Units.”
(c) Delivery of the Common Shares. Subject to Section 2(d) below, upon the lapse
of the Period of Restriction with respect to a Unit, the Unit shall be converted
into the right to receive a Common Share, and the Company will deliver to the
Participant a number of Common Shares equal to the number of Units subject to
this Award, on the applicable date of the lapse of the Period of Restriction or
as soon as practicable thereafter. The form of delivery (e.g., a share
certificate or electronic entry evidencing such shares) shall be determined by
the Company.
1
--------------------------------------------------------------------------------
(d) Termination of Continuous Employment. Notwithstanding any other provision of
this Agreement to the contrary, if the Participant is an employee of the Company
or one of its subsidiaries or affiliates, and if the Participant’s continuous
employment with the Company terminates for any reason (or no reason), other than
the Participant’s death or Disability (as defined in the Plan), any Restricted
Units that are subject to the Period of Restriction on the date of the
Participant’s termination shall be immediately forfeited by the Participant and
shall be automatically transferred to and reacquired by the Company at no cost
to the Company, and neither the Participant nor his or her heirs, executors,
administrators or successors shall have any right or interest in such Restricted
Units or the underlying Common Shares. In the event of the Participant’s death
or Disability, any Restricted Units that are subject to the Period of
Restriction on the date of death or Disability shall immediately vest and the
Participant or his or her heirs, executors, administrators or successors shall
have the right and interest in such Restricted Units.
3. No Rights as a Shareholder. Until Common Shares shall have been
delivered to the Participant in accordance with Section 2(c) hereof, subject to
the terms of this Agreement and the Plan, shall have no rights of a shareholder
with respect to the Restricted Units, including no right to vote the Restricted
Units and no right to receive current dividends and distributions, with respect
to the Restricted Units.
4. Change in Control. Notwithstanding Section 2 of this Agreement, if the
Participant holds Restricted Units at the time a Change in Control (as defined
in the Plan) occurs, the Period of Restriction with respect to such Restricted
Units granted in Section 1 shall automatically lapse immediately prior to the
consummation of such Change in Control.
5. Withholding. All deliveries and distributions under this Agreement shall be
subject to withholding of all applicable taxes. The Participant agrees to make
appropriate arrangements with the Company for satisfaction of any applicable
federal, state or local income tax, withholding requirements or like
requirements, including the payment to the Company upon the lapse of the Period
of Restriction with respect to the Restricted Units (or such later date as may
be applicable under the Internal Revenue Code of 1986, as amended (the “Code”)),
or other settlement in respect of, the Restricted Units of all such taxes and
requirement.. The Participant agrees that the Company shall be authorized to
take such action as the Company may deem necessary (including, without
limitation, in accordance with applicable law, withholding amounts from any
compensation or other amount owing from the Company to the Participant) to
satisfy all obligations for the payment of such taxes.
6. Restrictions on Transfer. During the Period of Restriction, the Participant
shall not sell, transfer, pledge, hypothecate, assign, exchange or otherwise
dispose of the Restricted Units. Any attempted sale, transfer, pledge,
hypothecation, assignment, exchange or other disposition shall be null and void
and of no force or effect and the Company shall have the right to disregard the
same on its books and records and to issue “stop transfer” instructions to its
transfer agent.
7. Plan Provisions Control. This Agreement is subject to the terms and
conditions of the Plan, which are incorporated herein by reference.
Notwithstanding anything to the contrary contained herein, the provisions of the
Plan shall govern if and to the extent that there are inconsistencies between
the provisions of the Plan and the provisions of this Agreement. The Participant
acknowledges that the Participant has received a copy of the Plan prior to the
execution of this Agreement.
8. No Rights Conferred. Nothing in this Agreement shall give the Participant any
right to continue in the employ or service of the Company, any affiliate or any
subsidiary and/or as a member of the Company’s Board of Trustees or in any other
capacity, or interfere in any way with the right of the Company, any affiliate
or any subsidiary to terminate the employment or services of the Participant.
2
--------------------------------------------------------------------------------
9. Consent to Electronic Delivery. The Company may choose to deliver certain
statutory materials relating to the Plan in electronic form. By accepting this
Agreement, the Participant agrees that the Company may deliver the Plan
prospectus and the Company’s annual report to the Participant in an electronic
format. If at any time the Participant would prefer to receive paper copies of
these documents, please contact Chief Financial Officer of the Company to
request paper copies of these documents.
10. Adjustments. All references to the number and class of shares covered by
this Agreement and other terms in this Agreement may be appropriately adjusted,
in the discretion of the Committee, in the event of certain unusual or
non-recurring transactions, as set forth in Section 4.2 of the Plan.
11. Compliance with Section 409A of the Code. The Participant hereby consents
(without further consideration) to any change to this Agreement or the Award so
the Participant can avoid paying penalties under Section 409A of the Code, even
if those changes affect the terms and conditions of this Agreement of the Award
and reduce its value or potential value.
12. Binding Effect. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors and permitted assigns. This Agreement may not be
assigned or transferred in whole or in part by the Participant, nor may the
Participant delegate any duty or obligation under this Agreement, and any
attempt to so assign, transfer or delegate shall be null and void and of no
force or effect.
13. Interpretation of this Agreement. All determinations and interpretations
made by the Committee with regard to any questions arising under the Plan or
this Agreement shall be final, binding and conclusive as to all persons,
including without limitation the Participant and any person claiming rights from
or through the Participant.
14. Venue. Each party to this Agreement hereby irrevocably (i) consents and
submits to the exclusive jurisdiction of the state and federal courts in Harris
County, Texas in connection with any disputes arising out of this Agreement, and
(ii) waives any objection based on venue or inconvenient forum with respect to
any action instituted therein arising under this Agreement or the transactions
contemplated hereby, and agrees that any dispute with respect to such matters
shall be heard only in the courts described above.
15. Governing Law; Entire Agreement; Amendment. This Agreement shall be governed
by and construed in accordance with the laws of the State of Maryland, without
regard to such state’s conflict of laws principles. The Plan and this Agreement
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all prior understandings and agreements, written or
oral, of the parties hereto with respect to the subject matter hereof. This
Agreement may be amended by the Committee, subject to the Participant’s consent
if such amendment materially and adversely affects the rights of the
Participant, except that the consent of the Participant shall not be required
for any amendment made pursuant to Section 4.2 or Section 15.11 of the Plan, or
as set forth in Section 11 of this Agreement.
16. Tax Elections. THE PARTICIPANT UNDERSTANDS THAT HE OR SHE (AND NOT THE
COMPANY) SHALL BE RESPONSIBLE FOR THE PARTICIPANT’S OWN TAX LIABILITY THAT MAY
ARISE AS A RESULT OF THE ACQUISITION OF THE UNITS HEREUNDER. THE PARTICIPANT
ACKNOWLEDGES AND AGREES THAT HE OR SHE HAS CONSIDERED THE ADVISABILITY OF ALL
TAX ELECTIONS IN CONNECTION WITH THE ISSUANCE OF THE UNITS.
3
--------------------------------------------------------------------------------
17. Notices. Any notice, demand or request required or permitted to be given
under this Agreement shall be in writing and shall be deemed given (i) when
delivered personally, or (ii) three days after being deposited in the United
States mail, by certified or registered mail, postage prepaid, or (iii) the next
business day after sent by nationally recognized overnight delivery service, and
addressed, if to the Company, at its principal place of business, Attention:
Chief Financial Officer, and if to the Participant, at his or her most recent
address as shown in the employment or stock records of the Company.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
WHITESTONE REIT
By:
Name:
Title:
Participant:
Date: [ ]
4
--------------------------------------------------------------------------------
Exhibit A
Lapse of Period of Restriction
The purpose of this Exhibit A is to set forth the date of lapse of the Period of
Restriction under the terms of the attached Restricted Unit Award Agreement (the
“Agreement”). This Exhibit A is incorporated into and forms a part of the
Agreement.
The Period of Restriction will lapse as follows:
(a)
1/7th of these Units will vest on [______].
(b)
1/7th of these Units will vest on [______].
(c)
1/7th of these Units will vest on [______].
(d)
1/7th of these Units will vest on [______].
(e)
1/7th of these Units will vest on [______].
(f)
1/7th of these Units will vest on [______].
(g)
1/7th of these Units will vest on [______].
5 |
887 F.2d 62
UNITED STATES of America, Plaintiff-Appellee,v.George AYALA, Raul Alfredo Portillo, and Oscar Reza,Defendants-Appellants.
No. 88-1880
Summary Calendar.United States Court of Appeals,Fifth Circuit.
Oct. 16, 1989.
Salvador C. Ramirez, El Paso, Tex., for defendants-appellants.
LeRoy Morgan Jahn, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.
Appeals from the United States District Court for the Western District of Texas.
Before POLITZ, GARWOOD and JOLLY, Circuit Judges.
GARWOOD, Circuit Judge:
1
Defendants-appellants George Ayala (Ayala), Raul Alfredo Portillo (Portillo), and Oscar Reza (Reza) appeal their convictions for conspiracy to possess with intent to distribute, and for possession with intent to distribute, one hundred pounds of marihuana in violation of 21 U.S.C. Secs. 841(a)(1) and 846, contending that the evidence adduced at trial was insufficient to support their convictions1. We reject this contention and affirm.
Facts and Proceedings Below
2
On March 10, 1988, after a tip from an informant that Ayala was trafficking in narcotics, U.S. Customs Service Special Agent Jimmy Searls (Searls) commenced surveillance of Ayala's activities, ultimately following him to an El Paso self-storage rental facility. At this point, Searls was unable to obtain a position from which to observe Ayala's actions inside the facility.
3
Later that day, Fred Shroeder (Shroeder), an investigator with the Customs Service, summoned Searls to the self-storage facility to show him a test vial containing debris found outside storage unit D-13 that had tested positive for marihuana. Although Searls was unable to detect a marihuana odor emanating from D-13 that evening,2 a Customs Service dog alerted at the door of the unit. As a result, the Customs Service rented a nearby unit from which agents could view unit D-13.
4
Searls testified that five days later he observed Ayala arrive at the storage unit under surveillance and open his car trunk, which Searls noticed contained a blue, hard-sided suitcase. Ayala opened the valise, exposing a black, plastic garbage bag surrounded by white towels that Searls believed were positioned to cushion the bag. Ayala then unlocked the door to unit D-13 with a key and entered it. From his vantage point, Searls was able to see inside the unit and notice that it housed a large scale and two dark-colored garbage bags, one of which Ayala weighed on the scale. Searls testified that after weighing the bag, Ayala completed his activity at D-13 for the day by storing the blue suitcase inside the unit and locking the door.
5
Shroeder testified that on March 22 he called the Customs Service canine unit to the self-storage rental facility in question to examine the exterior of unit D-13 and that, once again, the dog alerted at its entrance. Three days later, Shroeder observed Ayala return to unit D-13 to retrieve from it an unspecified number of bags, a few of which were plastic and others of which were white and marked with green writing. Ayala placed all of the bags inside the passenger's side of his car. Shroeder and Searls followed Ayala from El Paso as far as the U.S. Border Patrol checkpoint near Truth or Consequences, New Mexico. There, agents let Ayala pass after an apparently cursory inspection of his automobile.3
6
Upon returning to El Paso, Shroeder and Searls searched the garbage dumpster at the self-storage facility and discovered several black garbage bags and white nylon ones bearing green writing on the exterior similar to that seen by Shroeder earlier in the day on the white bags Ayala loaded in his car. Shroeder testified that the green markings appeared to indicate weights in kilograms. The white bags contained a green residue that smelled like marihuana and tested positive as such.
7
On April 12, 1988, while conducting a surveillance of Ayala's home, Shroeder and Searls observed a black Ford Bronco arrive at the house.4 Shroeder testified that he saw a man get out of the automobile and approach the house. He then discerned the same man talking to Ayala in his carport. Searls did not observe this initial contact between the two men, but he later saw two men, who appeared to him to be Mexican, leave the carport and enter the Bronco.5 Searls also saw Ayala exit the house carrying two suitcases that he loaded in the rear of the Bronco.6
8
Searls trailed the Bronco and its three passengers to the Amtrak passenger terminal in El Paso and followed the three inside the building. There Ayala split from Reza and the other passenger, both of whom entered the ticket line. From a place in line behind them, Searls was able to overhear Reza purchasing train tickets, although he was unable to make out the destination. After the suspects departed, Searls questioned the ticket agent and learned that Reza had purchased three tickets to Phoenix, Arizona, in the name of "L. Portillo." Fearing that a narcotics shipment would soon be leaving the city, Searls requested assistance from the El Paso Police Department, the United States Border Patrol, and the Drug Enforcement Agency (DEA).
9
Later in the day on April 12, the same black Ford Bronco returned to the Amtrak station, this time with four passengers. Border Patrol agent Jesse Shaw (Shaw) testified that the four--Ayala, Reza, Portillo, and co-defendant Victor Hernandez (Hernandez)--unloaded luggage from the vehicle and separated into two groups. Shaw followed Hernandez and Portillo, who was carrying a maroon suitcase as well as a light blue one, into the terminal. As the two neared the boarding area, Shaw and El Paso Police Sergeant Paul Irwin (Irwin) stopped them and requested identification, which they provided. When the officers asked Hernandez and Portillo to produce their tickets, Hernandez replied that only Portillo was traveling. Hernandez also answered Shaw's inquiry directed to Portillo about his destination, stating that Portillo was departing for a family-related visit to Phoenix. Shaw testified that Portillo said little, although when he spoke he did so in English. Because Hernandez insisted on doing most of the talking for the pair, the officers attempted to separate the two and interrogate them a few feet apart.
10
Shaw questioned Hernandez and asked him how he arrived at the train station. Hernandez responded that he and Portillo had hired a taxi; however, following Shaw's retort that he had seen the suspects show up at the station in a Bronco, Hernandez admitted that the pair had in fact arrived in the manner Shaw described and that he was at the station simply to drop off the appellants.
11
The officers' attempt to conduct separate interrogations failed when Irwin asked Portillo for consent to search his two suitcases because Hernandez again interrupted the questioning, advising Portillo in Spanish not to give consent. Shaw testified that during the officers' repeated requests for consent, Portillo said only a few words, appeared nervous, and seemed to look to Hernandez for counsel about what to say. When the officers asserted that they wanted Portillo to speak for himself, Hernandez told Portillo not to act until he saw a lawyer. Following an inspection of the suitcases by a narcotics dog that resulted in its alerting to them, the officers seized the suitcases and arrested Hernandez and Portillo.
12
El Paso Police officer Armando Fonseca (Fonseca) stopped the other two suspects, Reza and Ayala, as they entered the boarding area of the station and asked them if they would answer a few questions. Both agreed. Fonseca testified that Reza had two suitcases with him that appeared to be heavy because of the way he was carrying them, and that Ayala was toting a garment bag and a briefcase.
13
Fonseca began the questioning by asking Reza if he was boarding the train and, if so, to produce his ticket. Reza answered affirmatively and, with his hand visibly shaking, he presented Fonseca a ticket, which was issued in the name of "L. Portillo" for one-way passage to Phoenix. When Fonseca asked for other identification, Reza, still visibly nervous, displayed a driver's license bearing his actual name. Fonseca testified that Reza was unable to explain the discrepancy in the names.
14
After answering Fonseca's inquiry about the length and nature of his travel by stating that he was departing on a short trip to visit his father, Reza was unable to explain why he was carrying such large suitcases. Reza then responded to Fonseca's question about the nature of his association with Ayala by denying having ever seen him before.
15
Fonseca completed his interrogation of Reza by informing him that he was a narcotics officer and wanted to obtain his consent to search the suitcases. Reza rejoined that he did not understand the meaning of consent and asked if Fonseca had a search warrant. After failing to obtain consent to open the suitcases, Fonseca turned his attention to Ayala, who had paced nervously throughout the interrogation.
16
Ayala also held a one-way ticket to Phoenix in the name of "L. Portillo," although he asserted that his destination was Casas Grandes. In addition, after producing a driver's license in his own name, Ayala explained the difference in the names by asserting that someone else had purchased his train ticket for him.
17
Ayala maintained that he was traveling to Casas Grandes on business to examine property there for a Dallas developer. However, he was unable to provide Fonseca with the names of any of his contacts in Casas Grandes. Ayala also denied knowing Reza or the other two suspects and stated that he had arrived at the terminal by taxi. He further described the purported taxi driver's appearance to Fonseca, without realizing that Fonseca had earlier seen him arriving in the Bronco.
18
Fonseca testified that following the questioning and an examination of the suitcases by the narcotics dog, which alerted to them, Ayala reacted to the test results and his imminent detention by shaking his head "in a dejected manner." After search warrants were obtained, authorities found one hundred pounds spread among the four suitcases seized from Portillo and Reza. Though the suitcases contained some other items, the marihuana accounted for most of their weight. No illicit substances were discovered in Ayala's bags. Searls further testified that he examined the seized luggage and noted that one piece looked identical to the blue, hard-sided suitcase he had seen in Ayala's possession on March 15 at the self-storage facility. Except for essentially fruitless cross-examination of the government's witnesses, there was no defense evidence.
19
Following a bench trial, Ayala, Portillo, and Reza were convicted as charged on both counts. This appeal follows.
Discussion
20
Appellants' sole contention on this appeal7 is that the evidence was insufficient to support their convictions. In evaluating such a challenge, we must examine the evidence as a whole in the light most favorable to the verdict and must afford the government the benefit of all reasonable inferences and credibility choices drawn therefrom. Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942); United States v. Kim, 884 F.2d 189 (5th Cir.1989); United States v. Whittington, 783 F.2d 1210, 1216 (5th Cir.1986). This Court recognizes that it is the " 'sole province' " of the trier of fact " 'to weigh the evidence and the credibility of the witnesses.' " United States v. Martin, 790 F.2d 1215, 1219 (5th Cir.1986) (quoting United States v. Davis, 752 F.2d 963, 968 (5th Cir.1985)). We will hold that the evidence is sufficient to sustain the verdict if a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. United States v. Palella, 846 F.2d 977, 981 (5th Cir.), cert. denied, --- U.S. ----, 109 S. Ct. 162, 102 L. Ed. 2d 133 (1988). When making such a determination, " '[i]t is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt....' " United States v. Henry, 849 F.2d 1534, 1536 (5th Cir.1988) (quoting United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd, 462 U.S. 356, 103 S. Ct. 2398, 76 L. Ed. 2d 638 (1983)).
21
We observe more generally that what the fact finder "is permitted to infer from the evidence in a particular case is governed by a rule of reason," and that fact finders may properly " 'use their common sense' " and " 'evaluate the facts in light of their common knowledge of the natural tendencies and inclinations of human beings.' " Henry, 849 angela84@example.net. Further, as the Supreme Court long ago remarked, "[c]ircumstances altogether inconclusive, if separately considered, may, by their number and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof." Coggeshall v. United States (The Slavers), 69 U.S. (2 Wall.) 383, 17 L. Ed. 911, 914-15 (1865).
22
To establish guilt of conspiracy to possess marihuana with intent to distribute under 21 U.S.C. Secs. 841(a)(1) and 846, the United States must prove beyond a reasonable doubt the existence of an agreement that entails a violation of the narcotics laws, the defendants' knowledge of the agreement, and their voluntary participation in it. The prosecution, however, does not need to present evidence showing an overt act by the defendants in furtherance of such a conspiracy. United States v. Hernandez-Palacios, 838 F.2d 1346, 1348 (5th Cir.1988); United States v. Gardea Carrasco, 830 F.2d 41, 44 (5th Cir.1987). In determining the existence of a conspiracy agreement, the trier of fact may rely on circumstantial evidence, including presence and association, along with other evidence. See United States v. Graham, 858 F.2d 986, 991-92 (5th Cir.1988), cert. denied, --- U.S. ----, 109 S. Ct. 1140, 103 L. Ed. 2d 201 (1989); United States v. Ascarrunz, 838 F.2d 759, 763 (5th Cir.1988). The elements of the conspiracy charge "may be inferred from the 'development and collocation of circumstances.' " United States v. Lentz, 823 F.2d 867, 868 (5th Cir.1987) (quoting United States v. Vergara, 87 F.2d 57, 61 (5th Cir.1982)). Although to be guilty a defendant must voluntarily participate in the conspiracy, he need only play a minor role in the overall scheme. United States v. Gonzales, 866 F.2d 781, 788 (5th Cir.1989).
23
In order to prove that the accused were guilty of the underlying offense, 21 U.S.C. Sec. 841(a)(1), the United States must establish beyond a reasonable doubt that they (1) knowingly (2) possessed marihuana (3) with intent to distribute it. See United States v. Richardson, 848 F.2d 509, 511 (5th Cir.1988); United States v. Williams-Hendricks, 805 F.2d 496, 500 (5th Cir.1986). Possession of the illicit narcotic may be actual or constructive, constructive possession being "the knowing exercise of, or the knowing power or right to exercise, dominion and control over the proscribed substance." Gardea Carrasco, 830 F.2d at 45 (quoting United States v. Glasgow, 658 F.2d 1036, 1043 (5th Cir.1981)). In addition, possession and intent to distribute may be established by circumstantial evidence, and intent may be inferred as well from possession of a large amount of the illicit substance. United States v. Prieto-Tejas, 779 F.2d 1098, 1101 (5th Cir.1986).
24
Ayala argues that the United States failed to prove any element of the conspiracy charge and that it did not establish that he had possession of the marihuana. To the contrary, the evidence against Ayala appears to have been more than sufficient to support his conviction. That evidence included testimony linking Ayala to a self-storage facility unit that he controlled, to which narcotics dogs alerted and in front of which government agents discovered marihuana residue. In addition, the evidence indicated that the white bags Ayala was seen carrying into the unit were similar to those containing traces of marihuana that agents discovered in a nearby garbage bin. The unit contained a scale. Further testimony disclosed that the blue suitcase Ayala stored at the unit on March 15 appeared identical to one holding marihuana that agents seized at the train station on April 12.
25
The evidence also revealed that early on April 12, agents observed Ayala accompany Reza to the train station and wait while Reza stood in the ticket line. Later in the day, they watched Ayala, Portillo, and Reza arrive at the station together in the black Bronco and unload luggage from its rear. When considered with the prior evidence, as well as evidence that Ayala was arrested carrying a train ticket bearing the same name as those tickets held by Reza and Portillo and that he exhibited nervous behavior during questioning and lied to Fonseca about his association with his co-defendants, it is clear that sufficient evidence existed establishing Ayala's guilty knowledge of and participation in the charged conspiracy. See Richardson, 848 F.2d at 509 (nervousness at checkpoint); United States v. Romero-Reyna, 867 F.2d 834, 836 (5th Cir.1989) (lying evidence of guilty knowledge).
26
Although Ayala was not physically carrying the marihuana-laden suitcases when stopped by Fonseca, the trier of fact could have reasonably determined that he had constructive possession of the proscribed substance inside them. Ayala's link to the conspiracy as well as the evidence that one of the suitcases seized by agents had previously been in his possession allow the inference that Ayala had the knowing right to exercise dominion over the marihuana.8 Gardea Carrasco, 830 angela84@example.net. The evidence is also sufficient to show Ayala's guilt of the substantive offense on an aiding and abetting basis or under the rationale of Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 1184, 90 L. Ed. 1489 (1946).
27
Reza and Portillo also contend on appeal that the prosecution failed to prove any element of the conspiracy charges against them. They further maintain that although they were in possession of the marihuana when arrested, the prosecution failed to present evidence establishing that they were in knowing possession of the substance. With respect to Reza, once again, ample evidence exists to support his convictions on both counts. Even though Reza never appeared at the facility where the marihuana was stored, other sufficient evidence indicated his participation in the conspiracy and his knowledge of what he was carrying. Agents observed him arrive at Ayala's home on April 12, pick up Ayala and two apparently empty suitcases, and drive with Ayala to the train station. There, Reza purchased the three tickets to Phoenix bearing identical names, two of which Reza and Ayala were holding when arrested later in the day at the station. When Fonseca stopped Reza, whose two suitcases were later found to contain marihuana, he acted nervously and lied to Fonseca about his association with Ayala. See Richardson, 848 F.2d at 513 (nervousness); Romero-Reyna, 867 F.2d at 836 (providing false information). Given the foregoing as well as the fact that Reza, himself, was planning to travel on the train that day with the suitcases, rather than simply helping apparently innocent others with their luggage at the station, the trier of fact could have reasonably inferred that Reza had knowing possession of the marihuana he was carrying and that he voluntarily participated in the conspiracy.
28
Portillo entered the scenario later than Ayala and Reza and, as a result, the evidence against him is not as strong, although it is sufficient to sustain his convictions. Agents observed him arrive at the station on April 12 in the vehicle with Ayala, Reza, and Hernandez and take two suitcases, which later were discovered to contain marihuana, into the terminal. All three appellants had passage booked to Phoenix, yet Portillo entered the terminal separately from Ayala and Reza and appeared to be traveling apart from them. During questioning, Portillo seemed nervous and was reluctant to answer the officers' questions, relying on Hernandez to deal with them. Finally, like Reza, Portillo himself intended to travel on the train that afternoon with the suitcases and was not merely helping apparently innocent others with their luggage at the station. A collocation of the circumstances would allow a trier of fact to conclude beyond a reasonable doubt that Portillo knew what he was carrying and that he voluntarily participated in a conspiracy with Ayala and Reza to possess marihuana with the intent to distribute it.
Conclusion
29
In conclusion, we find that the evidence was sufficient for the district court to convict Ayala, Portillo, and Reza on both counts.
30
AFFIRMED.
1
Appellants' sole other point on appeal is their challenge to the constitutionality of the federal sentencing guidelines followed by the district court in determining their sentences. Because the Supreme Court has since upheld the constitutionality of the guidelines, this challenge is rejected without further discussion. See United States v. Mistretta, --- U.S. ----, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989); United States v. White, 869 F.2d 822 (5th Cir.), cert. denied, --- U.S. ----, 109 S. Ct. 3172, 104 L. Ed. 2d 1033 (1989)
2
Searls testified, however, that he smelled marihuana at unit D-13 and also that he had found marihuana residue in front of it on subsequent occasions
3
The inspection did, however, include an examination of the interior of the trunk of Ayala's car
4
The Bronco was registered in the name of Reza's mother
5
One of the men was later identified as appellant Reza
6
Searls testified that he thought the suitcases were empty because of the way Ayala was able to "swing[ ] them in[to] ..." the rear of the Bronco
7
Apart from their attack on the constitutionality of the sentencing guidelines, see note 1, supra
8
With regard to all three appellants, the intent to distribute the marihuana can be inferred from the quantity of marihuana found in the suitcases, one hundred pounds. Prieto-Tejas, 779 F.2d at 1101
|
OPINION
{¶ 1} On February 26, 2003, the Ashland County Grand Jury indicted appellant, Dane Ferenbaugh, on two counts of forgery in violation of R.C. 2913.31, both felonies of the fifth degree. On May 22, 2003, appellant pled guilty to one count; the remaining count was dismissed. By judgment entry filed July 14, 2003, the trial court sentenced appellant to twelve months in prison.
{¶ 2} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows:
I {¶ 3} "The imposition of a prison sentence in this case imposes an unnecessary burden on state resources."
I {¶ 4} Appellant claims his sentence of twelve months for forgery in the fifth degree places an "unnecessary burden on state or local government resources" in contravention of R.C.2929.13(A). Specifically, appellant claims the cost of imprisoning him "is an unnecessary burden given the facts of this case." Appellant's Brief at 7. We disagree.
{¶ 5} R.C. 2929.13 governs sentencing guidelines for various specific offenses and degrees of offenses. Subsection (A) states as follows in pertinent part:
{¶ 6} "Except as provided in division (E), (F), or (G) of this section and unless a specific sanction is required to be imposed or is precluded from being imposed pursuant to law, a court that imposes a sentence upon an offender for a felony may impose any sanction or combination of sanctions on the offender that are provided in sections 2929.14 to 2929.18 of the Revised Code. The sentence shall not impose an unnecessary burden on state or local government resources."
{¶ 7} The very language of the cited statute grants trial courts discretion to impose sentences. Nowhere within the statute is there any guideline for what an "unnecessary burden" is.
{¶ 8} The record sub judice is devoid of any evidence to support the claim of an "unnecessary burden on state or local government resources." In fact, the record indicates appellant's past probation violations have placed a burden on local government resources. T. at 4-5. This supports the argument in favor of a prison sentence. Having failed twice on local supervision resulting in probation violation hearings, resentencing and jail time, we find the lease impact on local and state government resources in this case would be imprisonment.
{¶ 9} The sole assignment of error is denied.
{¶ 10} The judgment of the Court of Common Pleas of Ashland County, Ohio is hereby affirmed.
Farmer, J., Gwin, P.J., and Boggins, J., concur. |
Deutsche Investment Management Americas Inc. One Beacon Street Boston, MA 02108 October 4, 2010 Securities and Exchange Commission treet, N.E. Washington, DC20549 RE: DWS Floating Rate Plus Fund (the “Fund”), a series of DWS Portfolio Trust (the “Trust”) (Reg. Nos. 002-13627 and 811-00042) Ladies and Gentlemen: Pursuant to Rule 497(j) under the Securities Act of 1933, as amended, the Trust hereby certifies that the form of Prospectus and Statement of Additional Information that would have been filed on behalf of the Fund pursuant to Rule 497(c) upon the effectiveness of Post-Effective Amendment No. 110 to the Trust’s Registration Statement on Form N-1A (the “Amendment”), do not differ from that contained in the Amendment, which was the most recent Amendment to such Registration Statement and was filed electronically on September 29, 2010. Please direct any comments or questions on this filing to the undersigned at (770)265-0557. Very truly yours, /s/Scott D. Hogan Scott D. Hogan Vice President Deutsche Investment Management Americas Inc. cc:Adam M. Schlichtmann, Ropes & Gray LLP
|
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-3097
___________
JAMES V. WALLACE,
Appellant
v.
WARDEN DAVID EBBERT;
KEVIN BITTENBENDER, D.H.O.
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 11-cv-01936)
District Judge: Honorable William W. Caldwell
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 16, 2012
Before: RENDELL, FISHER and GARTH, Circuit Judges
(Opinion filed: November 20, 2012)
___________
OPINION OF THE COURT
___________
PER CURIAM
Appellant, James V. Wallace, is a federal prisoner proceeding pro se. On August
23, 2010, while he was an inmate at the Allenwood Federal Correctional Institution in
White Dear, Pennsylvania, (“FCI-Allenwood”), he was issued an incident report for
violating the Federal Bureau of Prisons (“BOP”) Prohibited Acts Code 112, which
prohibits the use of any narcotics not prescribed by medical staff. See 28 C.F.R. § 541.3,
tbl. 1. According to the incident report, Wallace’s August 17, 2010 urine sample had
tested positive for opiates. On September 3, 2010, at a hearing before a Disciplinary
Hearing Officer (“DHO”), Wallace admitted the charge against him. Based on Wallace’s
admission and other evidence, the DHO sustained the disciplinary charge. After noting
that this was Wallace’s fourth Code 112 violation, and explaining the seriousness of the
offense, the DHO sanctioned him as follows: (1) loss of eighteen months of telephone
privileges, as well as three years of visiting privileges; (2) disciplinary segregation of
sixty days; (3) disallowance of fifty-four days of good time credit; and (4) forfeiture of
458 days of non-vested good time credit.
On October 19, 2011, Wallace filed a petition for writ of habeas corpus under 28
U.S.C. § 2241 claiming that the DHO impermissibly relied on his prior Code 112
violations to “enhance” the sanctions pertaining to his good time credits. According to
Wallace, the sanctions were “harsh and unjust,” and violated both 28 C.F.R. § 541.3 and
BOP Program Statement 5270.09, which outlines the inmate discipline program in
accordance with the underlying regulation. The District Court denied the petition, and
Wallace timely appealed.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 28 U.S.C.
§ 2253(a). We exercise plenary review over the District Court’s legal conclusions and
2
review its factual findings for clear error. See Vega v. United States, 493 F.3d 310, 314
(3d Cir. 2007).
The District Court correctly concluded that Wallace’s punishment fell within the
range of acceptable punishments outlined in the applicable regulations.1 Pursuant to
Table 1 of 28 C.F.R. § 541.3, the DHO was permitted to “[f]orfeit and/or withhold . . .
non-vested good conduct time (up to 100%),” and “[d]isallow ordinarily between 50%
and 75% (27-41 days) of good conduct time credit available for a year.” Wallace’s loss
of 458 days of non-vested good conduct time was clearly permitted by this regulation,
and, although the loss of 54 days of good conduct time exceeded the “ordinar[y]”
sanction, nothing in Table 1 prohibited the DHO from disallowing a greater percentage of
his good conduct time in an effort to deter him from future infractions—especially given
his history of Code 112 violations. Furthermore, while Wallace argues that the DHO was
not permitted to enhance his punishment under Table 2 based on prior offenses that were
more than two years old, see 28 C.F.R. § 541.3, tbl. 2 (“Additional Available Sanctions
for Repeated Prohibited Acts Within the Same Severity Level”), the DHO did not rely on
Table 2 to determine his punishment; rather, as previously noted, the DHO imposed
sanctions permitted under Table 1.
For these reasons, we will affirm the District Court’s judgment.
1
The District Court also determined that Wallace received all of the process he was due
during the disciplinary proceedings. See Wolff v. McDonnell, 418 U.S. 539, 563-66
(1974); Superintendent v. Hill, 472 U.S. 445, 454 (1985). Wallace does not challenge
this ruling on appeal, and we see no error in the District Court’s reasoning.
3
|
NO. 12-16-00301-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DEVIN MIMS, § APPEAL FROM THE 241ST
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Devin Mims appeals his conviction for theft. Appellant’s counsel filed a brief in
compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967),
and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We affirm.
BACKGROUND
Appellant was charged by indictment with theft of property valued at less than $2,500
enhanced to a state jail felony by two prior theft convictions. He pleaded “true” to the
enhancements and “guilty” to the offense as charged. After a hearing, the trial court assessed
Appellant’s punishment at imprisonment for twenty-two months. This appeal followed.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant’s counsel filed a brief in compliance with Anders v. California and Gainous v.
State. Appellant’s counsel relates that he has reviewed the record and found no reversible error
or jurisdictional defects. In compliance with High v. State, 573 S.W.2d 807, 812 (Tex. Crim.
App. [Panel Op.] 1978), Appellant’s brief contains a professional evaluation of the record
demonstrating why there are no arguable grounds to be advanced. 1
We have considered counsel’s brief and conducted our own independent review of the
record. Id. at 811. We have found no reversible error.
CONCLUSION
As required by Anders and Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.
1991), Appellant’s counsel has moved for leave to withdraw. See also In re Schulman, 252
S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for
consideration with the merits. Having done so, we agree with Appellant’s counsel that the
appeal is wholly frivolous. Accordingly, we grant counsel’s motion for leave to withdraw and
affirm the judgment of the trial court.
Appellant’s counsel has a duty to, within five days of the date of this opinion, send a
copy of the opinion and judgment to Appellant and advise him of his right to file a petition for
discretionary review. See TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35.
Should Appellant wish to seek review of this case by the Texas Court of Criminal Appeals, he
must either retain an attorney to file a petition for discretionary review on his behalf or he must
file a pro se petition for discretionary review. Any petition for discretionary review must be filed
within thirty days from the date of this court’s judgment or the date the last timely motion for
rehearing was overruled by this court. See TEX. R. APP. P. 68.2(a). Any petition for
discretionary review must be filed with the Texas Court of Criminal Appeals. See TEX. R. APP.
P. 68.3(a). Any petition for discretionary review should comply with the requirements of Rule
68.4 of the Texas Rules of Appellate Procedure. See In re Schulman, 252 S.W.3d at 408 n.22.
Opinion delivered October 18, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
1
In compliance with Kelly v. State, Appellant’s counsel provided Appellant with a copy of the brief,
notified Appellant of his motion to withdraw as counsel, informed Appellant of his right to file a pro se response,
and took concrete measures to facilitate Appellant’s review of the appellate record. 436 S.W.3d 313, 319 (Tex.
Crim. App. 2014). Appellant was given time to file his own brief. The time for filing such a brief has expired and
no pro se brief has been filed.
2
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 18, 2017
NO. 12-16-00301-CR
DEVIN MIMS,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 241st District Court
of Smith County, Texas (Tr.Ct.No. 241-0764-16)
THIS CAUSE came to be heard on the appellate record and brief filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
|
951 F.2d 363
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Helmut "Bill" BUBBEL, Defendant-Appellant.
No. 90-10503.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Sept. 20, 1991.Dec. 19, 1991.
1
Before ALARCON and T.G. NELSON, Circuit Judges, and PRICE, District Judge*
2
MEMORANDUM**
3
Helmut "Bill" Bubbel (Bubbel), appeals from the judgment of conviction following a jury trial. Bubbel was found guilty of conspiracy to import marijuana in violation of 21 U.S.C. § 963, and conspiracy to commit interstate travel in aid of racketeering in violation of 18 U.S.C. § 371. On appeal Bubbel raises five contentions:
4
1. The district court acquitted Bubbel of conspiracy to import drugs from Colombia; therefore, the jury's verdict subjected Bubbel to double jeopardy.
5
2. Co-defendant's opening statement and closing argument resulted in Bruton violations denying Bubbel his right to cross-examine the witnesses against him.
6
3. The district court abused its discretion by denying Bubbel's motion to sever his trial.
7
4. Bubbel was denied his right to effective assistance of counsel because his trial counsel misunderstood the nature of the charges against him.
8
5. Bubbel's right under the sixth amendment to be informed of the nature and cause of the accusation against him was violated.
9
We conclude that each of these contentions lack merit and affirm.
DISCUSSION
1. Double Jeopardy Claim
10
Bubbel contends that at the conclusion of the Government's case in chief, the district court acquitted him of any involvement in the conspiracy to import marijuana from Colombia. As a result, he argues that when the judge instructed the jury on the charge concerning the conspiracy to import marijuana from "Colombia, and elsewhere," he was subjected to double jeopardy.
11
We review de novo the denial of a motion to dismiss for a violation of the double jeopardy clause. United States v. Goland, 897 F.2d 405, 408 (9th Cir.1990). Bubbel did not move to dismiss this matter on double jeopardy grounds, accordingly we must review this claim for plain error. See United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir.1986) (when no objection is made at trial, review on appeal is for plain error).
12
"A plain error is a highly prejudicial error affecting substantial rights." Reversal of a criminal conviction on the basis of plain error is an exceptional remedy, which we invoke only when it appears necessary to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process.
13
Id. (quoting, United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979 (1979)).
14
On July 13, 1990, at the conclusion of the Government's case, Bubbel made several motions including a motion for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. On July 17, 1990, the district court heard arguments on these motions. The district court first ruled on Bubbel's motion for a determination that "as a matter of law he withdrew from the alleged conspiracy on February 20th of 1986." The court denied Bubbel's motion on the grounds that it was for the jury to decide whether there was sufficient evidence to indicate that Bubbel withdrew from the conspiracy after the failure of the effort to smuggle marijuana from Asia. In explaining the basis for its ruling, the district court stated: "In that regard, [the jury] will consider the credibility of the pilots, whether or not they believe the pilots when they say Mr. Bubbel had nothing to do with the subsequent conspiracy. That's for the jury to decide."
15
The next issue considered by the district court was Bubble's motion for acquittal under Rule 29. The Government argued that there was only one conspiracy which involved the use of the DC-6 to import marijuana from Asia and Colombia. The defense argued that if a single conspiracy was charged, then, "there is no evidence showing Mr. Bubbel's intent to import marijuana from Colombia." The district court ruled as follows:
16
Before the court is Defendant Bubbel's Rule 29 motion for judgment of acquittal on Counts IV and V, insofar as the indictment refers to the conspiracy to import marijuana from, quote, "Colombia and elsewhere," unquote.
17
The fact there is no evidence that Mr. Bubbel participated in a conspiracy to import marijuana from Colombia is not essential to the adequacy of the allegations in the indictment. It is an allegation of general nature, allegation (sic) specifically confirmed the acquisition of the DC-6 aircraft, the plans to fly to Southeast Asia, the off-loading sites, and preparations for Alaska, all of which refer to the overall conspiracy.
18
The issue for a court on a Rule 29 motion is to determine whether there is sufficient evidence on which a jury could return a verdict of guilty. And certainly in this particular case there is sufficient evidence to withstand the Rule 29 motion.
19
And it is denied.
20
Bubbel argues "that the court's midtrial ruling of no evidence to support appellant BUBBEL's involvement insofar as Counts II and III [IV and V of superseding indictment] refer to the conspiracy to import marijuana from Colombia constitute an acquittal of those charges. The submission to the jury allowing conviction despite the lack of evidence placed appellant in Double Jeopardy and denied Due Process." Brief of curtis39@example.net.
21
We disagree. The district court did not "acquit" Bubble of anything. Instead, in denying his motion for the entry of a judgment of acquittal on the charge that Bubbel conspired to import marijuana from "Colombia and elsewhere", the district court explained that there was sufficient evidence to go to the jury on the question of whether Bubbel had withdrawn from the conspiracy prior to the plot to import drugs from Colombia. Because Bubbel was not acquitted of any charge by the district court, he was not subjected to double jeopardy.
2. Alleged Bruton Violation
22
Bubbel second contention is that the attorney for his co-defendant, Thomas Gary Smith, violated the rule established in Bruton v. United States, 391 U.S. 123 (1968), during his opening statement and closing arguments. We review allegations of Bruton error de novo. Herd v. Kincheloe, 800 F.2d 1526, 1529 (9th Cir.1986). As Bubbel made no objections to the opening statement or closing argument, we review this claim for plain error.
23
Bubbel asserts that it was Smith's trial strategy "to confess his guilt as to both of the counts in which he was jointly charged with appellant BUBBEL for the purpose of establishing credibility with the jury, and then focusing his defense on the more serious [Continuing Criminal Enterprise] charges." As a result, he argues that he "was denied his constitutional right to confront and cross examine the witness against him and was denied a fair trial by co-defendant Smith's admission of the two jointly charged conspiracy counts."
24
A Bruton violation occurs when at a joint trial, an out of court admission of the co-defendant which implicates the defendant is admitted into evidence. The harm occurs when:
25
the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed.
26
Bruton, at 135-36 (footnotes omitted).
27
The only portion of the record relied upon by Bubbel in support of his Bruton claim is the opening statement and closing argument presented by Smith's attorney. The Government correctly responds that this case involves neither evidence of an out of court admission, nor statements of Smith implicating Bubbel in the conspiracy as required by Bruton. Bubbel has failed to cite to any authority applying Bruton to the argument of counsel for a co-defendant. Bubbel has failed to demonstrate from this record that a highly prejudicial error resulted in a miscarriage of justice.
3. Motion to Sever Trials
28
Bubbel asserts that the district court erred in denying his motion to sever his trial from that of his co-defendant Smith. He argues that Smith presented an antagonistic defense, and that admission of evidence pertaining to Smith's operation of a Continuing Criminal Enterprise unduly prejudiced Bubbel by association. We review for abuse of discretion a district court's denial of a motion to sever under Rule 14 of the Federal Rules of Criminal Procedure. United States v. Plache, 913 F.2d 1375, 1378 (9th Cir.1990).
29
The Government responds that this issue has been waived on appeal due to Bubbel's failure to renew his motion at the close of evidence. Bubbel concedes that he did not renew his motion at the close of all the evidence, but argues that he fits within one of the exceptions set forth in Plache to the requirement that the motion to sever be renewed at the close of all the evidence.
30
In Plache, the appellant made three motions for a severance. The first was made before trial, the second "early in the trial, and the third at the close of the Government's case in chief." 913 curtis39@example.net. In affirming the conviction, we stated that it was unnecessary to review the merits of Plache's claim "because Plache did not renew his motion to sever at the close of all trial evidence. Failure to do so generally waives appellate review." Id. We explained our ruling in Plache on the following passage:
31
In United States v. Kaplan, 554 F.2d 958, 965 (9th Cir.), cert. denied, 434 U.S. 956 (1977), we identified two exceptions to the requirement of renewal to preserve appellate review: " the motion accompanies the introduction of evidence deemed prejudicial and a renewal at the close of all evidence would constitute an unnecessary formality." Neither of these two exceptions has been shown to apply here.
32
Without any supporting authority, Plache contends this issue was not waived because he renewed a motion to sever at the close of the Government's case in chief. This is not the law of our circuit.
33
913 F.2d at 1379 (citations omitted).
34
Like the appellant in Plache, Bubbel made a motion to sever before trial. Bubbel filed no other motion for a severance. Instead at the end of the Government's case in chief, he filed a document entitled "MOTION TO DISMISS COUNTS IV AND V OF INDICTMENTS." A footnote on the first page of that document states: "Although this motion is brought as a motion to dismiss, it also reinstates our motion to sever defendants under Rule 14 of the Federal Rules of Criminal Procedure. The arguments in the motion to sever would be identical, and at this point, a severance equates to a dismissal."
35
In submitting the above motion to the court on July 13, 1990, Bubble's counsel orally described the motion before the court as a request for an order of dismissal. No reference was made during argument to a motion to sever. The district court heard oral argument on the motion to dismiss on July 17th. Bubbel's counsel did not discuss the reinstated motion to sever. Bubbel's cursory reinstatement of his motion to sever at the close of the Government's case in chief did not accompany the introduction of evidence deemed prejudicial. Because the motion was not renewed at the close of the presentation of all the evidence some four trial days later, the severance issue was waived on this appeal.
36
4. Alleged Ineffective Assistance of Counsel
37
Bubbel asserts that he received inadequate assistance of counsel during his trial. He argues that his defense counsel misunderstood the nature of the charges against him and, as a result, conceded that Bubbel was involved in the Asia conspiracy.
38
Bubbel has the burden of establishing that (1) counsel's performance fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced the defense such that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. at 689.
39
Bubbel did not raise the issue of ineffective assistance of counsel before the district court. In United States v. Wagner, 834 F.2d 1474 (9th Cir.1987), we held that an ineffectiveness of counsel claim should not be considered on direct appeal, where the appellant asserts that counsel's trial strategy was inadequate, unless counsel's ineffectiveness is so obvious that it is not necessary to develop facts outside the trial record. Id. at 1482-83. Under such circumstances, the trial court's failure to take notice of the problem sua sponte " ' "might constitute plain error which may be considered on direct appeal." ' " Id. at 1482 (quoting United States v. Kanzi, 576 F.2d 238, 242 (9th Cir.1978) (quoting United States v. Porter, 431 F.2d 7, 11 (9th Cir.), cert. denied, 400 U.S. 960 (1970))).
40
Bubbel contends that "the entire defense theory was based on counsel's view that the events prior to February 20, 1986, were irrelevant since the indictment only charged BUBBEL with conspiracy to import from Columbia [sic], which is an issue the Government had effectively conceded." Brief of curtis39@example.net. Bubbel argues that it was clear from the indictment and the court proceedings that in fact he was charged "with having conspired to smuggle from Southeast Asia as well as from Colombia.... To interpret the Indictment in any other manner falls below constitutionally required standards of competence."
41
Bubbel has failed to demonstrate from this record that counsel's performance fell below the constitutional threshold. The only portion of the record that Bubbel cites in support of his claim that counsel was ignorant of the meaning of the charges is an isolated excerpt from his counsel's closing argument. It should be noted that the closing argument was 56 pages long and that the quoted portion in the brief groups together one two-sentence paragraph, and one sentence from a different page altogether. Put into context, counsel argued that even if Bubbel was a participant in the conspiracy to smuggle marijuana from Southeast Asia, this constituted an entirely separate conspiracy from the charged conspiracy to smuggle drugs from "Colombia, and elsewhere". The jury was instructed that if they found that Bubble was a member of a conspiracy not charged in the indictment then, the jury "must find the defendant not guilty, even though that defendant may have been a member of some other conspiracy."
42
Bubbel has failed to overcome the presumption that counsel's argument constituted sound trial strategy. The record does not support a finding that counsel's arguments were so erroneous that the trial court's failure to take notice sua sponte of the alleged ineffectiveness constituted plain error.
5. Notice of Charges
43
In his final claim, Bubbel asserts that since his defense counsel misunderstood the charges against him, he was denied his sixth amendment right "to be informed of the nature and cause of the accusation" against him. As discussed in section IV, Bubbel has failed to establish on this record that counsel was working under any misapprehension concerning the nature and scope of the charges contained in the indictment. Bubbel did not present this issue to the trial court. Therefore we review this claim for plain error.
44
"[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of ... for the same offense." Hamling v. United States, 418 U.S. 87, 117 (1974). Bubbel does not assert that the indictment was inadequate to provide the requisite notice, or that the district court failed to provide him with a copy of the indictment as required by Rule 10 of the Federal Rules of Criminal Procedure. Indeed, in section IV of his brief, Bubbel repeatedly states that the indictment was "clear" as to the charges against him, and that in addition "at many points in the proceedings the defense attorneys were given notice of the charge by sources other than the charging document." Brief of Appellant at 28, 30. Bubbel also asserts in his brief that "[i]n response to various defense motions the government repeatedly provided information as to what its indictment alleged...." Brief of curtis39@example.net. Appellant's brief also quotes instances in which the district court provided notice as to the nature of the charges against Bubbel. Brief of curtis39@example.net.
45
Bubbel has failed to demonstrate from this record that "it should have been abundantly clear to the trial judge that the defendant misunderstood the offense for which he was on trial and, therefore, was not properly informed as to the nature and cause of the accusation and, therefore, did not present a meaningful defense to the crime that was charged." Brief of curtis39@example.net. Bubbel's claim that his sixth amendment right to notice was violated is without merit.
46
AFFIRMED.
*
The Honorable Edward Dean Price, Senior United States District Judge for the Eastern District of California, sitting by designation
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
|
72 F. Supp. 2d 526 (1999)
Theodore W. WILLMORE, Sr.
v.
AMERICAN ATELIER, INC.
No. Civ.A. 98-6623.
United States District Court, E.D. Pennsylvania.
November 24, 1999.
Richard L. Orloski, Allentown, PA, for plaintiff.
John K. Baker, Tallman, Hudders & Sorrentino, Allentown, PA, for defendant.
MEMORANDUM AND ORDER
JOYNER, District Judge.
Plaintiff, Theodore Willmore, instituted this suit under the Americans with Disabilities Act, 42 U.S.C. § 12101, et. seq. ("ADA") seeking both monetary damages and reinstatement to his former position with American Atelier, Inc. as a furniture scruffer. Defendant has now filed a motion for summary judgment on the grounds that, (1) plaintiff is not a disabled person within the meaning of the ADA and, (2) its decision to terminate his employment was due solely to his insubordinate and belligerent behavior on the day of his termination. For the reasons which follow, the motion for summary judgment shall be granted.
Factual Background
According to the averments in his complaint, Theodore Willmore, Sr. was hired by American Atelier, Inc. on May 4, 1998. A short time later, on June 3, 1998, Mr. Willmore contends that he seriously injured his back when he fell while working but he apparently nevertheless continued to work. On June 22, 1998, the plaintiff *527 somehow injured his hands while working, and was terminated later that same day. By this lawsuit, Plaintiff contends that Defendant terminated his employment because of his hand and back injuries and that since these injuries effectively disabled him, his termination was therefore in violation of the ADA.
Standards for Summary Judgment Motions
The standards to be applied by the district courts in ruling on motions for summary judgment are set forth in Fed. R.Civ.P. 56. Under subsection (c) of that rule,
.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
Pursuant to this rule, a court is compelled to look beyond the bare allegations of the pleadings to determine if they have sufficient factual support to warrant their melindadavis@example.net. Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287 (D.C.Cir. 1988), cert. denied, 488 U.S. 825, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988); Aries Realty, Inc. v. AGS Columbia Associates, 751 F. Supp. 444 (S.D.N.Y.1990).
Generally, the party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In considering a summary judgment motion, the court must view the facts in the light most favorable to the non-moving party and all reasonable inferences from the facts must be drawn in favor of that party as well. U.S. v. Kensington Hospital, 760 F. Supp. 1120 (E.D.Pa.1991); Schillachi v. Flying Dutchman Motorcycle Club, 751 F. Supp. 1169 (E.D.Pa.1990).
Where, however, "a motion for summary judgment is made and supported [by affidavits or otherwise], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response ... must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against [it]." Fed.R.Civ.P. 56(e). The non-moving party must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion and it cannot rely on unsupported assertions, conclusory allegations, or mere suspicions or beliefs in attempting to survive such a motion. Tziatzios v. U.S., 164 F.R.D. 410, 411, 412 (E.D.Pa.1996) citing Celotex v. Catrett, supra, 477 U.S. at 325, 106 S. Ct. at 2553-54, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202; Williams v. Borough of West Chester, 891 F.2d 458, 460 (3rd Cir.1989).
Discussion
The Americans with Disabilities Act prohibits certain employers from discriminating against individuals on the basis of their disabilities. Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S. Ct. 2139, 2143 (1999). The core anti-discrimination section of the ADA provides that:
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
*528 Deane v. Pocono Medical Center, 142 F.3d 138, 142 (3rd Cir.1998); 42 U.S.C. § 12112(a). Under the Definitions section of the Act, a "covered entity means an employer, employment agency, labor organization, or joint labor-management committee." 42 U.S.C. § 12111(2). A "qualified person with a disability," in turn, is defined as "... an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires ..." 42 U.S.C. § 12111(8).
In light of the preceding definitions, the Courts have held that disability discrimination cases, like other types of employment discrimination, are to be analyzed under the burden shifting framework first articulated in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). To establish a prima facie case of discrimination under the ADA, the plaintiff must therefore show three elements: (1) that he is a disabled person within the meaning of the ADA; (2) that he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) that he has suffered an otherwise adverse employment decision as a result of discrimination. Taylor v. Phoenixville School District, 184 F.3d 296, 306 (3rd Cir.1999); Gaul v. Lucent Technologies, Inc., 134 F.3d 576, 580 (3rd Cir.1998).
Turning to the first prong of the prima facie case, we must initially determine whether or not Mr. Willmore is a disabled person within the meaning of the ADA. Under 42 U.S.C. § 12102(2), "a disability" is defined as:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
The EEOC's regulations define "substantially limits" as "(I) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity." Taylor v. Phoenixville, 184 F.3d at 307, citing 29 C.F.R. § 1630.2(j)(1). The regulations also include the following factors for evaluating when someone is substantially limited in a major life activity: "(I) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." Id., citing 29 C.F.R. § 1630.2(j)(2). Thus the determination whether a person has a disability under the ADA is clearly an individualized inquiry. See: Sutton, 527 U.S. at ___, 119 S.Ct. at 2147.
It appears from the Plaintiff's Affidavit in Opposition to the defendant's Motion for Summary Judgment that the "disabilities" upon which this lawsuit is based arose when he first injured his back when he tripped over a cart on June 9, 1998 and on June 22, 1998 when he hit the outside of his left hand on a piece of furniture and it began to swell up. Mr. Willmore received medical care for both of these injuries, but as plaintiff's deposition reveals, his physician directed only that he should not lift heavy objects and should not "overdo it" with regard to walking as a result of the back injury. Plaintiff further testified that he was told by the defendant's company doctor that he should refrain from working until his hand was further examined. There is no evidence that either injury was expected to result in a long period of disability or that Plaintiff lost any time from work as a result of his injuries. While the *529 plaintiff claims that he had a little bit of difficulty in sleeping, standing and "moving with the flow" at work from the back injury and that his ability to grip items with his left hand is impaired, in evaluating the nature and severity of these problems, we cannot find that they rise to the level of a "substantial limitation" within the meaning of the ADA nor is there any evidence that Mr. Willmore was unable to perform any major life activities as a consequence of the condition of either his hand or his back.
Similarly, there is no evidence that Mr. Willmore had a record of such an impairment nor is there any evidence that he was regarded as disabled by his former employer. Indeed, while American Atelier may have had notice that Mr. Willmore had suffered a back injury some three weeks before his termination, his hand injury was allegedly suffered on the same day that he was terminated and shortly after the plaintiff had confrontations with both a co-worker and the company controller. Given that there is no evidence that the plaintiff either missed any work as a result of his back injury, that he either required or requested any special accommodations as a result of either of his injuries, or that American Atelier "mistakenly believed" that plaintiff's "actual, non-limiting impairment substantially limited one or more of his major life activities," we cannot find either a record of his having such an impairment or that he was regarded as having one. See Also: Murphy v. United Parcel Service, Inc., 527 U.S. 516, 119 S. Ct. 2133, 2137, 144 L. Ed. 2d 484 (1999). Accordingly, we cannot find that the plaintiff was "disabled" within the meaning of the ADA.
Turning next to the second and third prongs of the prima facie test, while we would find that Mr. Willmore was clearly qualified to perform the essential functions of his job (given that he continued to perform it despite his alleged injury), we find no evidence that the basis for the plaintiff's termination was anything other than insubordination and threatening behavior to both a co-worker and a superior. Indeed, Mr. Willmore's threatening and belligerent behavior was attested to at the depositions of James Balko and James Phillips and was further corroborated by the numerous written employee warning notices which plaintiff received over the brief course of his employment with the defendant company. Plaintiff himself admitted in his deposition that he had a verbal confrontation with Mr. Phillips and that when he was called in to explain what had happened with Mr. Phillips to Mr. Balko, the company controller and head of personnel matters, Mr. Balko "wasn't too pleased," his attitude "was not good." Although in an affidavit, the plaintiff asserts that he "was fired from American Atelier due to my disabilities, i.e. injuries to my back and hand, and John Hoffmeister and James Banko's perception of my disabilities, causing them to think that my disabilities rendered me a liability to the company," plaintiff has simply adduced no evidence to support his allegations or to refute the defendant's evidence, despite having had ample opportunity to do so through the discovery process. The plaintiff having failed to demonstrate two of the three prongs necessary to establish a prima facie case, we conclude that summary judgment is now appropriately entered in favor of the defendant and against the plaintiff.
An appropriate order follows.
ORDER
AND NOW, this 24th day of November, 1999, upon consideration of the Defendant's Motion for Summary Judgment and Plaintiff's Response thereto, it is hereby ORDERED that the Motion is GRANTED and judgment as a matter of law is hereby entered in favor of the Defendant and against the Plaintiff pursuant to Fed. R.Civ.P. 56.
|
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION
Presently before the court is the Motion to Strike filed by the Third Party Defendant. The motion should be granted.
The plaintiffs, Maria and Steven Mirabella, filed a first-party complaint against Yale New Haven Hospital, Yale School of Medicine, James Chung, M.D., and Kendall Healthcare Products Company (hereinafter Kendall), on January 10, 1992. The revised complaint, dated April 27, 1992, seeks damages for personal injuries suffered by Maria Mirabella when an eight millimeter length of epidural catheter allegedly remained inside of her body following the administration of epidural anesthesia at Yale New Haven Hospital. The plaintiffs' claims against Kendall are made pursuant to Connecticut's Product Liability Act, § 52-572m et seq. The complaint alleges that Kendall was engaged in the business of designing, manufacturing, distributing and selling medical supplies and that the epidural catheter at issue was manufactured by Kendall.
On December 3, 1992, Kendall filed a motion to implead Teleflex Incorporated (USA) (hereinafter Teleflex) as a third-party defendant on the ground that Teleflex is or may be liable to Kendall for the plaintiffs' claims against Kendall. In this motion, Kendall alleges that Teleflex, not Kendall, is ultimately liable for any defect that may be proven. The motion to implead was granted by the court, Thompson, J., on December 21, 1992.
Kendall filed a six count third-party complaint against Teleflex, dated December 27, 1992, seeking indemnification. Kendall claims that the catheter that allegedly injured the CT Page 7161 plaintiff was manufactured by Teleflex and sold by Teleflex to Kendall. The six counts in the third-party complaint, respectively, are (1) negligence, (2) breach of an implied warranty of merchantability, (3) breach of an implied warranty of fitness for a particular purpose, (4) breach of an express warranty that the catheter was free from defects, (5) that the defect in the catheter existed at the time the catheter was sold to Kendall, and (6) that Teleflex is liable to Kendall pursuant to Connecticut's Product Liability Act, § 52-572m et seq. Kendall additionally seeks recovery for attorneys' fees incurred in connection with the defense of the plaintiffs' claims.
On February 26, 1993, Teleflex filed a motion to strike the third-party complaint in its entirety or, alternatively, counts one, five and six. Teleflex also filed a memorandum of law in support of its motion to strike. Kendall filed a memorandum of law in opposition to Teleflex's motion to strike on March 16, 1994.
On March 1, 1993, the first-party plaintiffs filed a motion to consolidate, pursuant to Practice Book § 84(a), the present case andMirabella v. Teleflex Incorporated (USA) CV-93-0342487, (hereinafter Mirabella II) filed in the Judicial District of New Haven at New Haven, on the grounds that the facts and allegations arise out of the same transaction and will involve the same issues and factual witnesses. The court, Licari, J., granted the motion for consolidation on March 15, 1993. In Mirabella II, the plaintiffs, Maria and Steven Mirabella, filed a complaint against Teleflex, dated December 30, 1992, seeking recovery under Connecticut's Product Liability Act.
The purpose of a motion to strike is to contest the legal sufficiency of the allegations of any complaint to state a claim upon which relief can be granted. Novametrix Medical Systems, Inc.v. BOC Group, Inc., 224 Conn. 210, 214-15. Teleflex moves to strike Kendall's third-party complaint in its entirety on the grounds that third-party claims for indemnification in product liability actions are not allowed under Connecticut law pursuant to the holding of Kyrtatas v. Stop Shop,Inc., 205 Conn. 694. Teleflex contends that the Connecticut Supreme Court determined in Kyrtatas v. Stop Shop, Inc. that the Product Liability Act has abrogated the common law rules of indemnification in the context of product liability suits where all of the defendants are parties to the original action. Teleflex argues that since both Kendall and Teleflex have been sued by the plaintiffs and the cases have been consolidated, the present case CT Page 7162 is analogous to Kyrtatas v. Stop Shop, Inc.. Additionally, Teleflex argues that Kendall has failed to allege the elements necessary to state a cause of action for indemnification based upon active versus passive negligence.
Kendall claims that Teleflex's reliance on Kyrtatas v. Stop Shop, Inc., supra, is misplaced and that Malerba v. CessnaAircraft Co., 210 Conn. 189, which holds that common law indemnification is a viable cause of action in the context of product liability claims, governs the present case. Kendall additionally argues that the specific facts set forth in the first count, and those necessarily implied therefrom, adequately allege that Teleflex is or may be liable to Kendall for its negligence and thus adequately allege a cause of action for indemnification.
In Kyrtatas v. Stop Shop, Inc., supra, the court addressed the issue of whether "common law indemnity principles based on the concept of active versus passive liability apply in the context of a statutory product liability action." Id., 695. The plaintiff inKyrtatas v. Stop Shop, Inc. brought suit under the Connecticut Product Liability Act against several defendants, who then filed cross claims against one another seeking common law indemnity for any damages the plaintiffs might recover.
The court in Kyrtatas v. Stop Shop, Inc. concluded that "the common law doctrine of indemnification is inconsistent with provisions of the product liability act concerning comparative responsibility, award of damages, and contribution under General Statutes § 52-572o." Id., 699.
Comparative responsibility is inconsistent with indemnification because the former allows a jury to assign liability in specific proportion among several defendants on the basis of the evidence presented while the latter doctrine arose in response to the common law prohibition against contribution, and applies only in situations in which a passive joint tortfeasor has no actual responsibility for a tort. Indemnification is also irreconcilable with the product liability act because the legislature in subsection (e) of § 52-572o has abolished the common law prohibition against contribution in the context of these suits . . . . CT Page 7163
Id., 700. Thus, the court concluded that "[t]he product liability act by permitting actions for contribution has eliminated any reason for retaining the doctrine of indemnification in regard to [a product liability suit]." Id., 701. The holding in Kyrtatas v.Stop Shop, Inc. is limited, however, "to situations in which allpotential defendants are parties to the suit." (Emphasis added.) Id., 702.
One year later, in Malerba v. Cessna Aircraft Company, supra, the supreme court limited Kyrtatas v. Stop Shop, Inc., supra, to its facts, and held that common law indemnification continues as a viable cause of action in the context of a product liability case where a named defendant has filed a third-party complaint seeking indemnification against a third-party defendant. See Hoboken WoodFlooring v. Torrington Supply, 6 Conn. Super. Ct. 1133 Miller v. NortheastUtilities, supra. 8 Conn. Super. Ct. 509.
The plaintiffs in the present case and Mirabella II are asserting product liability claims against both Kendall and Teleflex, each as first-party defendants, in two actions which have been consolidated for trial. As such, the plaintiffs' claims against both Kendall and Teleflex should be decided in accordance with Connecticut Product Liability Act, and specifically the Act's principles of comparative responsibility. While Kendall and Teleflex are not defendants in the same action the consolidation of the present case and Mirabella II, places the two cases in a posture analogous to that of Kyrtatas v. Stop Shop, Inc., supra., notMalerba v. Cessna Aircraft Comp. , in that the two defendants from which the plaintiffs are seeking relief under the product liability act are defendants in the same trial and are each responding to a complaint of the plaintiff.
The analysis of Kyrtatas v. Stop Shop, Inc. applies in the present case, and Kendall's third-party claim for indemnification is improper.
Accordingly, the motion to strike is granted. CT Page 7164 |
119 Ill. App. 2d 142 (1970)
255 N.E.2d 615
R.J. Vanderlaan, d/b/a R.J. Vanderlaan Construction, Plaintiff-Appellee,
v.
Berry Construction Company, a Delaware Corporation, J. Everett Sims, Marjorie M. Sims, John J. Molloy and Dorothy J. Molloy, Defendants, J. Everett Sims, Marjorie M. Sims, John J. Molloy, and Dorothy J. Molloy, Defendants-Appellants.
Gen. No. 11,103.
Illinois Appellate Court Fourth District.
January 26, 1970.
Samuels, Miller, Schroeder, Jackson & Sly, of Decatur (John E. Fick, of counsel), for appellants.
Wilson, Dyar, Houchen & McDonald, of Decatur (Vernon H. Houchen, of counsel), for appellee.
*143 TRAPP, J.
Plaintiff, a subcontractor, sued Berry, the principal contractor, and the owners of certain real estate, claiming a balance due upon a subcontract. The owners moved to dismiss the complaint for failure to state a cause of action against them. The magistrate denied such motion and the owners elected to stand upon their pleadings. Judgment was entered in favor of the plaintiff in the sum of $1,965.95. The owners appeal. The record shows judgment by default against the contractor in the stated sum.
Plaintiff's Exhibit A, the subcontract concerned, explicitly notes that Berry is the principal contractor and that plaintiff is a subcontractor who is to furnish labor and materials for a portion of the work under the principal contract and that plaintiff is to be paid by Berry, the contractor.
Count I of the complaint alleges the contract between the plaintiff and Berry, performance by the former, and the balance due. The owners are named as defendants to such cause of action. The Count further alleges that the labor and material supplied by plaintiff were to meet the specifications set out in the contract between the owners and Berry. There is no allegation of service of notice of a subcontractor's lien upon the owners as provided in chapter 82, § 24, Ill Rev Stats 1967. It is alleged that at the time plaintiff completed the work, the owners were indebted to the contractor in an amount greater than the balance due plaintiff and that they knew that the plaintiff had not been paid by the contractor.
Count II alleges that the subcontract was prepared "by and at the direction" of the owners and "incorporates" the terms of the principal contract between the contractor and the owners; that the owners received the benefits resulting from plaintiff's construction, and *144 that plaintiff performed in accordance with the directions of the owners' engineer.
The motion to dismiss noted that no facts concerning compliance with the Mechanic's Lien Statute were pleaded; that Count I of the complaint shows, upon its face, that there was no contract between plaintiff and the owner-defendants, and that no other facts are pleaded which state a cause of action against them; that Count II fails to state facts showing any equitable lien in the favor of the plaintiff, but that the pleadings show only a contract between Berry and the plaintiff.
The owners contend that a subcontractor has no cause of action against the owner except as provided by the Mechanic's Lien Statute and that no notice invoking such statute was pleaded or, in fact, given. Chapter 82, §§ 21, 24, Ill Rev Stats 1967.
[1-3] In the absence of an express contract with the owner, a subcontractor, or one contracting with a principal contractor, cannot recover against the owner upon a contract theory for there is no employment between them. Peers v. Madison County Board of Education, School Dist. No. 3, 72 Ill. 508; Baker v. Mayer, 163 Ill. App. 391; 9 CJ, 176. As to recovery from the owner, the rights of a subcontractor arise under the Mechanic's Lien Statute. Suddarth v. Rosen, 81 Ill. App. 2d 136, 224 NE2d 602.
In Suddarth there was an action to foreclose a mechanic's lien by a subcontractor. He contended that a notice of a subcontractor's lien as required in chapter 82, § 24, was unnecessary as there was actual notice of plaintiff's claim and that the strict and technical requirement of notice should not defeat recovery for labor and material supplied in good faith by a subcontractor. The court affirmed a judgment for defendant holding that such notice was a condition precedent to a lien and that without such lien the subcontractor could not recover against the owner.
*145 Here the plaintiff contends that the owners should be held liable because they knew of the work and received the benefit thereof. In Campbell v. Day, 90 Ill. 363, it is stated that the doctrine that one seeing work done upon his property without objection is liable to the person performing it has no application where the entire work is contracted for and placed under another who has the power to employ whom he chooses. It is said that the owner has the right to presume that such work is being done for and in behalf of the contractor. See also Sloan v. Cleveland, C., C. & St. L. Ry. Co., 140 Ill. App. 31.
[4] The statute providing for a mechanic's lien has long been construed as being in derogation of the common law and strictly construed as to the manner of invoking it. Since plaintiff has not undertaken to state a cause of action in terms of a lien as a subcontractor, it is unnecessary to review his several contentions regarding the owners' alleged duties to procure affidavits from the contractor and retain funds as provided in chapter 82, §§ 5,24 and 27, Ill Rev Stats 1967.
In view of the law established as to the applications of the Mechanic's Lien Statute, it is unnecessary to discuss at length plaintiff's contention that the principal contract and the subcontract must be construed as one instrument so as to create liability in the defendant-owners.
The magistrate erred in refusing to dismiss the complaint as to the owner-defendants who appeal. The judgment below is reversed and remanded with directions to enter judgment in favor of the owner-defendants who appeal, with costs to be paid by plaintiff.
Reversed and remanded.
CRAVEN, P.J. and SMITH, J., concur.
|
Case: 20-1062 Document: 23 Page: 1 Filed: 04/16/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DENNIS C. MCKEOWN,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2020-1062
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0633-31-2843-I-1.
______________________
Decided: April 16, 2020
______________________
DENNIS C. MCKEOWN, Richmond, CA, pro se.
DEANNA SCHABACKER, Office of General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by TRISTAN
LEAVITT, KATHERINE MICHELLE SMITH.
______________________
Before LOURIE, WALLACH, and HUGHES, Circuit Judges.
PER CURIAM.
Case: 20-1062 Document: 23 Page: 2 Filed: 04/16/2020
2 MCKEOWN v. MSPB
Petitioner Dennis C. McKeown seeks review of a deci-
sion of the Merit Systems Protection Board dismissing his
appeal for lack of jurisdiction because Mr. McKeown re-
signed from federal employment. The Board lacks jurisdic-
tion over a resignation unless the petitioner can show it
was involuntary. Mr. McKeown claims that he resigned
involuntarily due to intolerable work conditions. Because
the Administrative Judge properly concluded that Mr.
McKeown failed to present nonfrivolous allegations of in-
voluntary resignation to establish jurisdiction, we affirm
the Board’s decision.
I
Mr. McKeown was a Supervisory Emergency Manage-
ment Program Specialist within the Response Division, Re-
gion IX, of the Federal Emergency Management Agency, a
section of the Department of Homeland Security. He had
twenty-two years of service with FEMA before his resigna-
tion in 2019. During the time relevant to this appeal, his
job duties included “preparing FEMA responses to natural
disasters” in Region IX (Arizona, California, Hawaii, Ne-
vada, & the Pacific Islands). McKeown v. Dep’t of Home-
land Sec., No. SF-0633-31-2843-I-1, slip op. at 2 (M.S.P.B.
July 30, 2019) (Board Decision).
Starting in 2016, Mr. McKeown reported to FEMA
management that he believed a contractor was billing
FEMA inappropriately, first for incomplete work on a ty-
phoon project and later for duplicative and out-of-scope
work on an earthquake project. He also made whistle-
blower complaints to the DHS Office of Inspector General
in November 2018 and March 2019. According to the Ad-
ministrative Judge, the November 2018 “disclosures are
the basis of [Mr. McKeown’s] whistleblower retaliation de-
fense in his appeal of the agency’s decision to place him on
furlough in December 2018 during the partial government
shutdown.” Board Decision at 3 n.4. DHS OIG declined to
investigate the March 2019 complaint. Because of his
Case: 20-1062 Document: 23 Page: 3 Filed: 04/16/2020
MCKEOWN v. MSPB 3
belief regarding the out-of-scope work on the earthquake
project, Mr. McKeown repeatedly tried unsuccessfully to
determine who approved the work and so refused to com-
plete briefings and presentations for FEMA administra-
tors. He also participated in the investigation of a
colleague’s Equal Employment Opportunity (EEO) com-
plaint.
According to Mr. McKeown, his supervisors retaliated
against him for these activities over the next three years
by creating intolerable working conditions through “har-
assment, isolation from coworkers, removal of job duties,
denial of merit system due process, and an unethically co-
ercive requirement to approve [contractor] tasks outside of
contract scope of work deliverables.” Resp. App. 27. 1 Dur-
ing this time, Mr. McKeown received a five-day suspension
for conduct unbecoming and failure to follow instructions
and an “unacceptable” rating on his 2018 performance re-
view. In May 2019, Mr. McKeown resigned, stating that
the agency’s behavior towards him, including “attempts to
force [him] to take responsibility for” the contractor’s alleg-
edly out-of-scope work, “placed [him] in an impossible eth-
ical position.” Resp. App. 74.
Mr. McKeown appealed to the Board, claiming that his
resignation was involuntary due to the intolerable work
conditions, and requested a hearing. Because resignations
are presumed voluntary and the Board has no jurisdiction
over voluntary resignations, Shoaf v. Dep’t of Agric., 260
F.3d 1336, 1340 (Fed. Cir. 2001), the Administrative Judge
required Mr. McKeown to make nonfrivolous allegations
that he resigned involuntarily due to duress, coercion, or
1 Both parties filed appendices with their briefs.
“Pet. App.” refers to the Appendix included with the Peti-
tioner’s brief. “Resp. App.” refers to the Supplemental Ap-
pendix included with the Respondent’s brief.
Case: 20-1062 Document: 23 Page: 4 Filed: 04/16/2020
4 MCKEOWN v. MSPB
misrepresentation by the agency before receiving a hear-
ing. Board Decision at 1−4. Mr. McKeown alleged several
ways in which FEMA management retaliated against him:
unfairly assessing his performance, eliminating and re-as-
signing key work responsibilities, and interfering in his re-
lationships with co-workers, subordinate employees, and
partners.
The Administrative Judge held that Mr. McKeown
failed to state a non-frivolous allegation that his resigna-
tion was involuntary and dismissed his case for lack of ju-
risdiction. Board simpsonbrad@example.org. She acknowledged that
the “allegations illustrate significant disagreements with
[Mr. McKeown’s supervisor] about work assignments, a
feeling of being unfairly evaluated, and a challenging work
environment” as well as Mr. McKeown’s “significant per-
sonal reactions to each of the alleged instances of harass-
ment.” Id. at 11−12. However, she found Mr. McKeown
provided insufficient specific examples for each allegation
and that there was reason for the agency to take the actions
it had. E.g., id. at 9 (reasoning that “the agency had legit-
imate reasons to reassign the work when the appellant did
not complete it” and that Mr. McKeown’s supervisor “sepa-
rated” him from a subordinate “because of a report that the
appellant harassed” the subordinate). The allegations
therefore did not demonstrate an objectively intolerable
work environment that would “compel a reasonable person
to resign.” Id. at 8, 11. The Administrative Judge’s initial
decision became the final decision of the Board on Septem-
ber 3, 2019.
Mr. McKeown timely appealed. We have jurisdiction
under 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).
Case: 20-1062 Document: 23 Page: 5 Filed: 04/16/2020
MCKEOWN v. MSPB 5
II
A
The Board lacks jurisdiction over voluntary resigna-
tions or retirements. Shoaf, 260 simpsonbrad@example.org. The peti-
tioner therefore has the burden of showing that “his or her
resignation or retirement was involuntary and thus tanta-
mount to forced removal.” Trinkl v. Merit Sys. Prot. Bd.,
727 F. App’x 1007, 1009 (Fed. Cir. 2018). Cf. Terban v.
Dep’t of Energy, 216 F.3d 1021, 1024 (Fed. Cir. 2000).
One way for the petitioner to rebut the presumption of
voluntariness is to show that the resignation was the prod-
uct of coercive acts by the agency, such as intolerable work-
ing conditions. Shoaf, 260 F.3d at 1341; Staats v. U.S.
Postal Serv., 99 F.3d 1120, 1124 (Fed. Cir. 1996). But “the
doctrine of coercive involuntariness is a narrow one.”
Staats, 99 F.3d at 1124 (describing limited scenarios where
a resignation was involuntary, like when it was “induced
by a threat to take disciplinary action that the agency
knows could not be substantiated” or where the agency at-
tempts to force the employee to quit, without “any legiti-
mate agency purpose”). We objectively consider the totality
of the circumstances to determine whether “a reasonable
employee confronted with the same circumstance would
feel coerced into resigning.” Shoaf, 260 F.3d at 1342 (quot-
ing Middleton v. Dep’t of Defense, 185 F.3d 1374, 1379
(Fed. Cir. 1999)).
“Whether the [B]oard had jurisdiction to adjudicate a
case is a question of law, which we review de novo.” Forest
v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995).
We review the Board’s factual findings affecting the juris-
dictional inquiry for substantial evidence. Lentz v. Merit
Sys. Prot. Bd., 876 F.3d 1380, 1384 (Fed. Cir. 2017).
B
On appeal, Mr. McKeown argues that the Administra-
tive Judge committed several errors in her jurisdictional
Case: 20-1062 Document: 23 Page: 6 Filed: 04/16/2020
6 MCKEOWN v. MSPB
determination: (1) failing to consider the “potential legal
jeopardy [Mr. McKeown faced] for participation in fraud”
had he not resigned, Pet. Br. 5–8; (2) determining that no
one forced him to place his name on assignments, particu-
larly the earthquake project briefing, and finding that the
earthquake project briefing was not a condition of employ-
ment; and (3) ignoring the “pattern of retaliation against
[him]” for reporting what he believed to be fraudulent bill-
ing for work outside of the earthquake project’s contract
scope, Pet. Br. 4. We reject these arguments.
First, though Mr. McKeown now argues that a reason-
able employee faced with potential personal liability for
fraud would resign rather than simply “stand and fight,”
Pet. Br. 5–6, 10–11; Mem. in Lieu of Oral Arg. 3−4, he did
not argue this before the Administrative Judge. He alleged
only that he was “not willing to compromise his personal
integrity and public trust responsibility by placing his
name on fraudulent [contractor] products as a condition of
employment with FEMA.” Board Decision at 10; Resp.
App. 56. We consider this argument waived. 2
Second, we see no error in the Administrative Judge’s
conclusions: that the project briefings were not a condition
of employment and that Mr. McKeown failed to nonfrivo-
lously allege that his supervisor’s actions were coercive.
Board Decision at 9−12. Indeed, Mr. McKeown repeatedly
refused to complete assigned briefings for the earthquake
project and received an “unacceptable” performance rating
for 2018, yet remained employed with no pending
2 And even if the argument was not waived, we find
it objectively implausible for Mr. McKeown to fear personal
legal liability for presenting a “fraudulent claim for pay-
ment or approval,” 31 U.S.C. § 3729(a)(1)(A), based on cre-
ating or presenting a project status update to internal
FEMA stakeholders, especially when he had already re-
ported his suspicions through formal channels.
Case: 20-1062 Document: 23 Page: 7 Filed: 04/16/2020
MCKEOWN v. MSPB 7
disciplinary action when he resigned. And in 2019, the
earthquake project presentation originally assigned to Mr.
McKeown was reassigned to another employee.
Third, the fact that the Administrative Judge did not
explicitly reference Mr. McKeown’s April 2019 whistle-
blower case was not error. An Administrative Judge need
not explicitly address all of a petitioner’s allegations or ev-
idence in her opinion: Omission does not indicate a lack of
consideration. See Marques v. Dep’t of Health & Human
Servs., 22 M.S.P.R. 129, 132 (M.S.P.B. 1984) aff’d, 776 F.2d
1062 (Fed. Cir. 1985). Regardless, the decision here re-
flects an understanding of the entire timeline of events, in-
cluding Mr. McKeown’s December 2016 and April 2019
complaints regarding the allegedly improper contractor
work and billing.
Reviewing the record, we have no doubt that Mr.
McKeown had a fraught working relationship with his di-
rect supervisor and other FEMA Region IX administrators.
However, a stressful working environment does not equate
to coercion. Brown v. U.S. Postal Serv., 115 M.S.P.R. 609,
616−17 (M.S.P.B. 2011) (reasoning that a finding of coer-
cion was not supported by an appellant’s allegations of,
among other things, her supervisors’ “increasing demands
that she perceived as trying to cause her to fail” and
“groundless[] critic[ism]” of her work); Miller v. Dep’t of
Def., 85 M.S.P.R. 310, 322 (M.S.P.B. 2000) (“Dissatisfaction
with work assignments, a feeling of being unfairly criti-
cized, or difficult or unpleasant working conditions are gen-
erally not so intolerable as to compel a reasonable person
to resign.”).
We have considered Mr. McKeown’s remaining argu-
ments and find them unpersuasive. For the reasons ex-
plained above, we affirm the Board’s decision.
AFFIRMED
No costs.
|
Citation Nr: 0032302
Decision Date: 12/12/00 Archive Date: 12/20/00
DOCKET NO. 99-09 182 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
left shoulder disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
INTRODUCTION
The veteran served on active duty from February 1941 to
October 1947. He was a prisoner of war from April 14, 1942
to April 16, 1942.
By decision in July 1996, the Board of Veterans' Appeals
(Board) denied the veteran's claim for service connection for
residuals of an injury to the left arm, to include the left
shoulder and arthritic changes. Recently, the veteran has
submitted additional evidence seeking to reopen his claim for
service connection for a left shoulder disability.
The veteran was scheduled to testify at a hearing at the
Board in September 2000, but he failed to report for it.
Effective March 1, 1999, the name of the United States Court
of Veterans Appeals was changed to the United States Court of
Appeals for Veterans Claims ("the Court").
REMAND
In an administrative decision dated July 1991, the RO
concluded that the veteran was a prisoner of war from April
14, 1942 through April 16, 1942. The veteran was not
informed of this determination until December 1991, and it is
not clear if he was advised of his right to appeal the
decision. In a statement received in August 1998, the
veteran indicated he wanted to "appeal" the determination
regarding his prisoner of war status. He argues that he was
a prisoner of war for more than three years.
As noted above, the issue currently before the Board is
whether new and material evidence has been submitted to
reopen a claim for service connection for a left shoulder
disability. In light of the fact that the record
demonstrates that the veteran has arthritis of the left
shoulder, the question as to whether he was a prisoner of war
for thirty days of more is inextricably intertwined with the
underlying issue in this case. See 38 C.F.R. § 3.309(c)
(1999). The Court has held that a claim that is inextricably
intertwined with another claim which remains undecided and
pending before VA must be adjudicated prior to a final order
on the pending claim. Harris v. Derwinski, 1 Vet. App. 180
(1990). However, the RO has not formally adjudicated the
veteran's current claim regarding the length of time he was a
prisoner of war.
Under the circumstances of this case, the Board finds that
additional action is required by the RO. The issue of
whether new and material evidence has been submitted to
reopen a claim for service connection for a left shoulder
disability is deferred. Accordingly, the case is REMANDED to
the RO for action as follows:
The RO should formally consider whether
the veteran was a prisoner of war for not
less than thirty days. If this
determination is adverse, and the veteran
files a notice of disagreement, the RO
should develop this matter in accordance
with appellate procedures.
Following completion of the above, the RO should review the
evidence and determine whether the veteran's claim may now be
granted. If not, he and his representative should be
furnished an appropriate supplemental statement of the case,
and the case should then be returned to the Board for further
appellate consideration.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the Regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
James R. Siegel
Acting Veterans Law Judge
Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).
|
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C.20549 Form 10-Q (Mark One) x QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period endedMay 31, 2012 o TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE EXCHANGE ACT For the transition period from to Commission file number333-102945 JETBLACK CORP. (Exact name of small business issuer as specified in its charter) Nevada 98-0379431 (State or other jurisdiction of incorporation or organization) (IRS Employer Identification No.) Suite #219 10654 - 82 Avenue, Edmonton, Alberta T6E 2A7 (Address of principal executive offices) (Issuer's telephone number) N/A (Former name, former address and former fiscal year, if changed since last report) Check whether the issuer (1) filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.Yes xNoo Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). YesxNo o Large accelerated filer o Accelerated filer o Non-accelerated filer o (Do not check if a smaller reporting company) Smaller reporting company x State the number of shares outstanding of each of the issuer's classes of common equity, as of the latest practicable date67,352,000 common shares issued and outstanding as of July 20, 2012 Check whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).Yeso Nox JETBLACK CORP. (A DEVELOPMENT STAGE COMPANY) CONSOLIDATED BALANCE SHEETS May 31, $ (Unaudited) August 31, $ ASSETS CURRENT ASSETS Cash – Total Current Assets – Total Assets – LIABILITIES AND SHAREHOLDERS’ EQUITY (DEFICIT) LIABILITIES CURRENT LIABILITIES Accounts payable and accrued liabilities Shareholder advance Total Current Liabilities Total Liabilities SHAREHOLDERS’ EQUITY (DEFICIT) Common stock, $.001 par value, 1,350,000,000shares authorized, 67,352,000 and 66,963,000 shares issued and outstanding at May 31, 2012 and August 31, 2011 respectively Additional paid in capital Subscription receivable – ) Deficit accumulated during the development stage ) ) Total Shareholders’ Equity (Deficit) ) TOTAL LIABILITIES AND SHAREHOLDERS’ EQUITY (DEFICIT) – See accompanying notes to consolidated financial statements. 2 JETBLACK CORP. (A DEVELOPMENT STAGE COMPANY) CONSOLIDATED STATEMENTS OF OPERATIONS Three and Nine Months Ended May 31, 2012 and May 31, 2011 and the Period from April 17, 2002 (Inception) through May 31, 2012 (Unaudited) Three Months Ended May 31, Three Months Ended May 31, Nine Months Ended May 31, Nine Months Ended May 31, April 17, 2002 (Inception) to May 31, $ REVENUE – COST OF GOODS SOLD – ) GROSS PROFIT – EXPENSES Inventory write-down – General and administrative Total Expenses Net Operating Loss ) NET LOSS ) NET LOSS PER SHARE: BASIC AND DILUTED ) WEIGHTED AVERAGE SHARES OUTSTANDING: BASIC AND DILUTED 67,207,315 127,955,326 67,091,018 144,496,962 See accompanying notes to the consolidated financial statements. 3 JETBLACK CORP. (A DEVELOPMENT STAGE COMPANY) CONSOLIDATED STATEMENTS OF CASH FLOWS Nine Months Ended May 31, 2012 and May 31, 2011 and the Period from April 17, 2002 (Inception) through May 31, 2012 (Unaudited) Nine Months Ended May 31, Nine Months Ended May 31, April 17, 2002 (Inception) to May 31, CASH FLOWS FROM OPERATING ACTIVITIES: Net loss $ ) $ ) $ ) Adjustments to reconcile net loss to cash used by operating activities: Common stock issued for services – – Impairment – – Change in current assets and liabilities Inventory – – ) Accounts payable and accrued expenses ) ) CASH FLOWS USED IN OPERATING ACTIVITIES ) ) ) CASH FLOWS FROM FINANCING ACTIVITIES: Advances from (repayment to) shareholders ) – Proceeds from issuance of common stock CASH FLOWS PROVIDED BY FINANCING ACTIVITIES NET CHANGE IN CASH – Cash, beginning of period – – – Cash, end of period $ $
|
Exhibit 10.34
SEVENTH AMENDMENT TO CREDIT AGREEMENT
This SEVENTH Amendment to Credit Agreement (the “Amendment”) is made and entered
into as of March 7, 2007 by and between BANK OF THE WEST (the “Bank”) and
ALPHATEC SPINE, INC. (the “Borrower”) with respect to the following:
This Amendment shall be deemed to be a part of and subject to that certain
Credit Agreement dated as of January 24, 2006, as it may be amended from time to
time, and any and all addenda and riders thereto (collectively the “Agreement”).
Unless otherwise defined herein, all terms used in this Amendment shall have the
same meanings as in the Agreement. To the extent that any of the terms or
provisions of this Amendment conflict with those contained in the Agreement, the
terms and provisions contained herein shall control.
WHEREAS, the Borrower and the Bank mutually desire to extend and/or modify the
Agreement.
NOW THEREFORE, for value received and hereby acknowledged, the Borrower and the
Bank agree as follows:
1. Modification of Definition of Borrowing Base. Commencing with the date of
this Amendment, Section 1.1.6 of the Agreement is hereby deleted and replaced
with the following: “Borrowing Base”: shall mean, as determined by the Bank from
time to time, the lesser of: (i) 80% of the aggregate amount of Eligible
Accounts of the Borrower plus the lesser of 50% of the aggregate amount of book
entry Accounts outstanding not more than 15 days from the date of entry or
$500,000.00 plus the lesser of 40% of the Value of Acceptable Inventory of the
Borrower which consists of raw materials, work-in-process or finished goods plus
20% of the Value of Acceptable Inventory which consists of inventory held at the
customer's location or $500,000.00, (ii) the total amount of deposits which are
maintained by Borrower at Bank which are neither demand deposit accounts or
pledged as collateral, or (iii) $12,000,000.00.
2. Modification of Definition of Reporting and Certification Requirements.
Commencing with the date of this Amendment, the first paragraph only of
Section 6.1(v) of the Agreement is hereby deleted and replaced with the
following: “Not later than 30 days after the end of each month, (i) a borrowing
base certificate in the form attached hereto as Exhibit “A” (“Borrowing Base
Certificate”), executed by Borrower and certifying the Amount of the Eligible
Accounts, and the total amount of deposits which are maintained by Borrower at
Bank which are neither demand deposit accounts or pledged as collateral, as of
the last day of the preceding month; and, (ii) an aging of accounts receivable
indicating separately the amount of accounts due from each Account Debtor and
the amount of total accounts receivable which are current, 31 to 60 days past
the due date, 60 to 90 days past the due date, and the amount over 90 days past
the due date and an aging of accounts payable indicating the amount of such
payables which are current 31 to 60 days past the due date, 60 to 90 days past
the due date, and the amount over 90 days past the due date; and, (iii) a
schedule of inventory specifying the Value thereof in the form attached hereto
as Exhibit “B”, and such other matters and information relating to the
Borrower’s inventory as the Bank may request.
3. Modification of Financial Condition/Net Loss. Commencing with the date of
this Amendment, Section 6.2(i) of the Agreement is hereby deleted and replaced
with the following: A maximum net loss, during the period commencing January 1,
2007, not to exceed $6,500,000.00 measured as of each quarter end in the year
2007.
4. Deletion of Financial Condition/Quarterly Profitability and Annually Net
Profit. Sections 6.2(ii) and 6.2(iii) of the Agreement are hereby deleted in
their entirety.
-1-
--------------------------------------------------------------------------------
5. Representations and Warranties. The Borrower hereby reaffirms the
representations and warranties contained in the Agreement and represents that no
event, which with notice or lapse of time, could become an Event of Default, has
occurred or is continuing.
6. Confirmation of Other Terms and Conditions of the Agreement. Except as
specifically provided in this Amendment, all other terms, conditions and
covenants of the Agreement unaffected by this Amendment shall remain unchanged
and shall continue in full force and effect and the Borrower hereby covenants
and agrees to perform and observe all terms, covenants and agreements provided
for in the Agreement, as hereby amended.
7. Governing Law. This Amendment shall be governed and construed in accordance
with the laws of the State of California to which jurisdiction the parties
hereto hereby consent and submit.
8. Counterparts. This Amendment may be executed in one or more counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, this Amendment has been executed by the parties hereto as of
the date first hereinabove written.
BANK: BORROWER: BANK OF THE WEST ALPHATEC SPINE, INC. BY:
/s/ Kris Ilkov
BY:
/s/ Steven M. Yasbek
NAME: Kris Ilkov, Vice President NAME:
Steven Yasbek, Vice President and
Chief Financial Officer
ADDRESS:
2051 Palomar Airport Road, Suite 100
Carlsbad, CA 92011
-2-
--------------------------------------------------------------------------------
LOGO [g96405imagebig.jpg]
INVOICE
March 8th 2007
Mr. Steven Yasbek, CFO
ALPHATEC SPINE, INC
2051 Palomar Airport Road, Ste 100
Carlsbad, CA 92011
Dear Steve:
This letter is our invoice for the following:
Amendment Waiver Fee of $50,000.00
Please authorize us to debit your account #672-017696 for $50,000.00 by signing
below and faxing back to us at (662)990-8201
We authorize Bank of the West to debit account no. 672-017696 for the waiver fee
of 50,000.00
/s/ Steven M. Yasbek
Steven Yasbek, CFO – Alphatec Spine Inc
Thank you for your banking business and for your assistance with this matter. If
you have any questions, please give me a call.
/s/ Kristian T. Ilkov
Kristian T. Ilkov, VP
San Diego National Banking Office
--------------------------------------------------------------------------------
LOGO [g96405imagesmall.jpg]
March 5, 2007
Steven Yasbek CFO
Alphatec Spine, Inc
2051 Palomar Airport Rd, Ste 100
Carlsbad, CA 92011
RE:
Credit Agreement dated January 24th, 2006 executed by Alphatec Spine, Inc.
(“Borrower”)
and Bank of the West (“Bank”) (the “Agreement”)
Dear Mr. Yasbek:
Borrower has requested the following waiver in connection with the subject
Agreement.
Bank hereby waives Borrower’s breach of Section 6.2(iii and iv) of the Agreement
occurring for the period ending December 31st, 2006. Any further breach of that
Section is not waived.
Except to the extent of this and any prior waiver, the Agreement shall remain
unaltered and in full force and effect. This letter shall not be a waiver of any
existing default or breach of a covenant unless specified herein.
This waiver shall be effective only upon receipt by the Bank of the enclosed
acknowledgment copy executed by the Borrower and Alphatec Holdings, Inc,
guarantor to the Agreement. If the foregoing is acceptable, please sign the
enclosed copy and return to the undersigned not later than .
Sincerely,
/s/ Kristian Ilkov
Kristian Ilkov, Vice President
Accepted and Agreed to Date: 3-13-07 Alphatec Spine, Inc., Borrower By:
/s/ Steven M. Yasbek
Its: CFO Alphatec Holdings, Inc., Guarantor By:
/s/ Steven M. Yasbek
Its: CFO
San Diego National Banking Office
1280 Fourth Avenue San Diego, CA 92101
(662)990-8201 Fax (662)990-8201
Member FDIC |
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