649 S.E.2d 736 (2007)
THOMPSON et al.
v.
GENERAL SECURITY INSURANCE COMPANY.
Thompson
v.
General Security Insurance Company.
Nos. A07A0699, A07A0700.
Court of Appeals of Georgia.
May 31, 2007.
O'Neal, Brown & Clark, Manley F. Brown, John Christopher Clark, Jarome Emile Gautreaux, Macon, Dennis P. Helmreich, Lexington, Charles Madden Cork III, Dennis P. Helmreich, Macon for Appellant.
Joseph Robb Cruser, Nola Dillon Jackson, Norcross, Stephanie Collings Patel, R. Clay Porter, Dennis, Corry, Porter & Smith, Thurbert E. Baker, Attorney General, Jeffrey William Stump, Assistant Attorney General, for Appellee.
MIKELL, Judge.
These companion cases arise out of a motor vehicle collision that occurred on September 22, 2001. David Lee Hinton, a driver for motor carrier Cocke Brothers Transportation Systems, Inc. ("Cocke"), was operating a tractor trailer on Interstate 20 in Greene County when he rear ended a vehicle driven by John Thompson, Jr. Thompson brought this action for personal injuries against Hinton, Cocke, Sirius American Insurance Company ("SAIC") and General Security Insurance Company ("GSIC"). Tracie Thompson and David Simpson also filed suit for the wrongful death of their nine-year-old daughter Alicia Simpson, a passenger in John Thompson's vehicle at the time of the collision. GSIC, which provided insurance coverage to Cocke pursuant to OCGA § 46-7-12, answered and successfully moved to add the Georgia Department of Transportation, Georgia Public Service Commission ("PSC"), and the Georgia Department of Motor Vehicle Safety("DMVS") as third-party defendants. The trial court granted summary judgment to GSIC on the ground that it cancelled Cocke's insurance policy effective July 2001, by filing a Form K, Uniform Notice of Cancellation of Motor Carrier Insurance Policies, with the PSC on May 14, 2001. The Thompsons and Simpson appeal, alleging that there is no direct evidence of the actual receipt of any Form K on behalf of GSIC. We disagree and affirm.
"To prevail at summary judgment . . ., the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law."[1]
A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient *738 to create a jury issue on at least one essential element of plaintiff's case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff's claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.[2]
Our review of the grant or denial of summary judgment is de novo.[3]
The pertinent issue in this case is whether the insurance policy issued by GSIC effective July 1, 1999, was properly cancelled in July 2001, by the filing of a Form K with the PSC on May 14, 2001. In order to properly address this issue, we must examine the Motor Carrier Act of 1931 (the "Act"), OCGA § 46-7-1 et seq., and PSC procedures. The Act gives the PSC the power to regulate the business of persons engaged in the transportation of persons and property for hire on any public highway in this state and provides that a motor carrier cannot operate without first obtaining a certificate from the PSC.[4] To obtain a certificate, the common carrier must provide a bond, with adequate security, for the protection of passengers, cargo, and the public against injuries caused by the carrier's negligence.[5] Internal PSC rules provide that a certificate of insurance or "Form E," evidencing a policy of indemnity insurance, may be filed in lieu of such bond.[6] An insurer may cancel a certificate of insurance by sending to the PSC a "Uniform Notice of Cancellation of Motor Carrier Insurance Policies" or Form K.[7] PSC rules further provide that any insurance policy shall continue until 30 days after written notice of the cancellation, i.e., Form K, is received in its office.[8]
According to PSC employees, Forms E and K were preprinted by the insurance industry and submitted to the PSC in triplicate. When either form was received in the PSC office, staff would date-stamp the first and second pages of the form and initial the second page. The PSC would keep the first page, return the initialed copy to the insurance company, and discard the third page. PSC staff testified that it was possible they could forget to initial the insurance company's copy. The forms were then sorted and held for processing at a later date when staff would review them to determine whether they were to be accepted or rejected. If a form was correct and complete, it was accepted; the information was entered into the PSC computer system, TCS/2000; and the original was date-stamped "entered." If a form was incorrect or incomplete it was rejected; the insurance company was notified by mail of the rejection; and a copy of the rejection letter was placed in the file. If a Form K was accepted, the TCS/2000 generated a letter notifying the motor carrier that its insurance was being cancelled.
With these requirements and procedures in mind, we address the facts in the record below. Sometime after these actions were filed in the State Court of Chatham County, counsel for GSIC submitted to the PSC a copy of a Form K seeking confirmation that GSIC had cancelled Cocke's insurance policy, effective July 2001. The PSC responded that there was no record in Cocke's file of a Form K having been filed with the PSC on May 14, 2001, and that no such document existed in PSC records or on the TCS/2000. The PSC further explained that the form submitted by counsel would have been rejected *739 because the address was incomplete. Subsequently, counsel produced a second copy of a Form K for policy number TP1006483, stamped received by PSC on May 14, 2001  but not initialed  explaining that the "original, stamped, completed address Form K" had been found by the insured. Though the PSC file does not contain a Form K cancelling Cocke's policy with GSIC, computer records reflect that a Form E was entered for GSIC on May 25, 2001, for policy number TO1006483.
PSC employee Gertrude Cash testified that she was responsible for the computer entry showing that a Form E was accepted from GSIC on May 25, 2001; that there is no Form E in the file that corresponds with that entry; that the computer default is set to a Form E; and that in order for an entry to be made in the TCS/2000, there must be a document to cause the entry to be made. Cash acknowledged that she could have mistakenly entered the GSIC form as a Form E and that she may have incorrectly typed the policy number. Finally, Cash testified that the date stamp on the Form K produced by GSIC resembled the date stamp on other forms received by the PSC. Betty Blount, a program assistant with the PSC, testified that the PSC used red ink in 2001; that the stamp on GSIC's second Form K was in red ink; and that the stamp appeared to be the PSC's stamp. However, she could not explain the Form E entry of May 25, 2001. In its response to GSIC's first request for admissions, the PSC could not confirm the genuineness of the document or the stamp. PSC employees did, however, confirm that on July 11, 2001, SAIC submitted a Form E to the PSC initiating insurance coverage for Cocke, effective July 1, 2001.
On March 31, 2005, GSIC's forensic expert, Albert Lyter, inspected 35 Form E and Form K documents at the PSC, all of which contained an ink stamp with the following notation:

RECEIVED

MAY 14 2001

TRANSPORTATION DIVISION GA PUBLIC SERVICE COMMISSION
According to Lyter, 18 of the 35 forms have the same ink stamp that appears on GSIC's Form K. Lyter compared ink samples from GSIC's Form K and two forms produced by the PSC, and concluded that the stamps were generated with the same ink and rubber stamp, and that all three stamps contained a defect in the letter "S" in the word "TRANSPORTATION." GSIC maintains that the Form K produced by counsel for GSIC was received by PSC on May 14, 2001, and entered into the computer by Cash on May 25, 2001, but as a Form E with the wrong policy number.
The trial court granted summary judgment to GSIC, ruling that Lyter's unrebutted affidavit established that the Form K submitted by GSIC was received by the PSC on May 14, 2001, and that cancellation of the policy should have occurred on July 1, 2001.
1. Appellants contend that the trial court erred in granting summary judgment to GSIC because the opinion of an expert alone is insufficient to demand summary judgment, and there was evidence that GSIC filed a Form E but not a Form K. Although appellants' premise is correct,[9] it does not apply here because summary judgment is not based solely on Lyter's opinion. The document itself shows on its face that it was received by the PSC on May 14, 2001, and appellants have not pointed to any specific evidence that the form was not received; that it was falsely stamped or otherwise irregular; or that the stamp was not authentic. Indeed, Blount and Cash testified that the stamp appeared to be authentic. In cases involving court filings, we have held that, "[a] paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file, and a certificate of the clerk, entered upon the paper at the time it is filed, is the best evidence of such filing."[10] Thus, a document is considered filed when it is delivered to and received by the proper official *740 to be kept on file.[11] The evidence shows that GSIC's Form K was received by the PSC on May 14, 2001. The fact that the form does not appear in the PSC's file or on its computer records does not negate the fact that the form was received by the PSC. Once received, it was the PSC's responsibility to ensure that the form was properly processed. That the form was processed incorrectly, or not at all, does not affect the outcome of GSIC's motion.
Appellants contend that public records are presumed to be correct and that the TCS/2000 printout shows that GSIC actually filed a Form E. But the TCS/2000 printout does nothing to rebut GSIC's direct evidence that the PSC received a Form K from GSIC on May 14, 2001, cancelling Cocke's insurance policy. Appellants further point out that when GSIC's counsel first presented the PSC with its Form K, the form did not contain Cocke's address or a file stamp. When advised of these omissions, counsel produced the form at issue. Therefore, appellants argue that a reasonable juror could conclude that if the second Form K had been available at the time counsel met with the PSC, it would have been produced. This argument indirectly implies that the form itself and/or the file stamp are forgeries, a theory unsupported by evidence in the record.
As appellants have failed to point to direct evidence showing that GSIC's Form K was anything but authentic, the trial court properly granted summary judgment to GSIC. To find otherwise would invite challenges to the validity of all publicly filed documents, based on unsupported supposition.
2. Alternatively, appellants argue that even if GSIC's Form K had been stamped "received" by the PSC, it was error to grant summary judgment because the form did not contain Cocke's address and would have been rejected by the PSC. On the contrary, the evidence shows that the second Form K produced by GSIC contains a valid address, and PSC employees testified that it would have been accepted.
3. Finally, appellants contend that the trial court's ruling improperly considered the fact that SAIC provided coverage to Cocke after the time GSIC alleges that the Form K was provided to the PSC. In light of our ruling in Division 1, that the unrebutted evidence shows that GSIC's Form K was received by the PSC on May 14, 2001, this argument is meritless.
Judgment affirmed.
JOHNSON, P.J., and PHIPPS, J., concur.
NOTES
[1]  See Brown v. Southeastern Security Ins. Co., 216 Ga.App. 234, 454 S.E.2d 158 (1995), citing OCGA § 9-11-56.
[2]  (Footnote omitted; emphasis in original.) Dozier Crane & Machinery v. Gibson, 284 Ga.App. 496, 497, 644 S.E.2d 333, (2007).
[3]  Id.
[4]  OCGA §§ 46-7-2; 46-7-3. Effective July 1, 2001, the motor carrier function of the PSC was transferred to the DMVS; however, for clarity purposes, we will refer to the PSC or the Commission since the events at issue occurred prior to the transfer.
[5]  OCGA § 46-7-12(a). See also Transportation Rules of Georgia PSC, Rule 7-2.1(a).
[6]  Transportation Rules of Georgia PSC, Rules 7-2.1(c), 7-2.6(c)(1).
[7]  Id. at 7-2.6(b), (c)(3).
[8]  Id. at 7-2.6(b).
[9]  See, e.g., Harrison v. Tuggle, 225 Ga. 211, 212-213(2), 167 S.E.2d 395 (1969); Ginn v. Morgan, 225 Ga. 192, 193-194, 167 S.E.2d 393 (1969).
[10]  (Citations and punctuation omitted.) Bailey v. Bonaparte, 125 Ga.App. 512, 514, 188 S.E.2d 119 (1972).
[11]  Valentine v. Hammill, 258 Ga. 582, 372 S.E.2d 435 (1988). See also Simmons v. J.A. Jones Constr. Co., 72 Ga.App. 517, 518-519, 34 S.E.2d 300 (1945) (where answer was received but not marked filed, trial court properly directed clerk to enter true date of filing, nunc pro tunc). Compare Peterson v. Taylor, 15 Ga. 483 (1854) (where brief bore no filing mark, and the clerk of court swore that it had never been filed, evidence was insufficient to establish that brief had been filed).


                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 19-2865
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                         Andrew Juno Shannon-Dickens

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                             Submitted: April 24, 2020
                               Filed: April 29, 2020
                                   [Unpublished]
                                  ____________

Before LOKEN, ERICKSON, and STRAS, Circuit Judges.
                           ____________

PER CURIAM.

      Andrew Shannon-Dickens appeals the sentence the district court1 imposed after
he pleaded guilty to a drug offense. His counsel has moved to withdraw and has filed

      1
       The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
a brief under Anders v. California, 386 U.S. 738 (1967), challenging the substantive
reasonableness of the sentence.

       After careful review, we conclude that the district court did not abuse its
discretion in sentencing Shannon-Dickens, as there was no indication that it
overlooked a relevant 18 U.S.C. § 3553(a) factor, or committed a clear error of
judgment in weighing relevant factors, see United States v. Salazar-Aleman, 741 F.3d
878, 881 (8th Cir. 2013) (standard of review); and the sentence was within the
Guidelines range, see United States v. Callaway, 762 F.3d 754, 760 (8th Cir. 2014).
Furthermore, having independently reviewed the record under Penson v. Ohio, 488
U.S. 75 (1988), we find no nonfrivolous issues for appeal.

      Accordingly, we grant counsel’s motion and affirm.
                     ______________________________

                                        -2-


988 F.2d 1209
Knightonv.Texaco Producing, Inc.*
NO. 92-4719
United States Court of Appeals,Fifth Circuit.
Mar 09, 1993
Appeal From:  W.D.La., 762 F.Supp. 686

1
AFFIRMED.

*
 Local Rule 47.6 case


917 F.2d 558Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Irby T. STARKE, Jr., Plaintiff-Appellant,v.John STIREWALT, Individually and as Sheriff of the County ofRowan;  Captain Glenn Sides, Individually and as an Officerof the Rowan County Sheriff's Department, a politicalsubdivision of the State of North Carolina;  Detective L.C.Shoaf, Individually and as an Officer of the Rowan CountySheriff's Department, a political subdivision of the Stateof North Carolina, Defendants-Appellees.
No. 90-6377.
United States Court of Appeals, Fourth Circuit.
Submitted Oct. 1, 1990.Decided Nov. 2, 1990.

Appeal from the United States District Court for the Middle District of North Carolina, at Salisbury.  Eugene A. Gordon, Senior District Judge.  (CA-90-209)
Irby T. Starke, Jr., appellant pro se.
Allan R. Gitter, Womble, Carlyle, Sandridge & Rice, Winston-Salem, N.C., for appellees.
M.D.N.C.
AFFIRMED.
Before DONALD RUSSELL and PHILLIPS, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:

1
Irby T. Starke, Jr. appeals from the district court's order denying relief under 42 U.S.C. Sec. 1983.  Our review of the record and the district court's opinion accepting the recommendation of the magistrate discloses that this appeal is without merit.  Accordingly, we affirm on the reasoning of the district court.  Starke v. Stirewalt, CA-90-209 (M.D.N.C. July 27, 1990).  We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

AFFIRMED


                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NOS. A-4833-16T3
                                                                     A-4834-16T3

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

          Plaintiff-Respondent,

v.

N.W.S. and J.K.C.,

     Defendants-Appellants.
____________________________________

IN THE MATTER OF THE
GUARIANSHIP OF L.N.S. and T.J.C.,

     Minors.
____________________________________

                    Argued October 10, 2018 – Decided October 25, 2018

                    Before Judges Hoffman, Suter and Firko.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Essex County, Docket
                    No. FG-07-0153-14.
            Ryan T. Clark, Designated Counsel, argued the cause
            for appellant N.W.S. (Joseph E. Krakora, Public
            Defender, attorney; Ryan T. Clark, on the briefs).

            Marc R. Ruby, Designated Counsel, argued the cause
            for appellant J.K.C. (Joseph E. Krakora, Public
            Defender, attorney; Marc R. Ruby, on the briefs).

            Merav Lichtenstein, Deputy Attorney General, argued
            the cause for respondent (Gurbir S. Grewal, Attorney
            General, attorney; Jason W. Rockwell, Assistant
            Attorney General, of counsel; Merav Lichtenstein, on
            the brief).

            Rachel E. Seidman, Assistant Deputy Public Defender,
            argued the cause for minors (Joseph E. Krakora, Public
            Defender, Law Guardian, attorney; Rachel E. Seidman,
            on the brief).

PER CURIAM

      Defendant N.S. (Nancy), mother of daughters T.C. (Tanner) and L.S.

(Linda), and defendant J.C. (Jeremy), father of Tanner, challenge the Family

Part order terminating their parental rights. On appeal, defendants argue the

Division of Child Protection and Permanency (the Division) failed to present

sufficient evidence to satisfy the best interests test, N.J.S.A. 30:4C-15.1(a)(3),

and that the trial judge erred when he denied Jeremy's request for a bonding

evaluation between Tanner and her paternal grandmother. We affirm.

                                                                          A-4833-16T3
                                        2
                                       I.

      We summarize those aspects of the record that are most pertinent to our

decision. Nancy is the mother of four children: Tanner (born August 29, 2005);

Serena (born August 31, 2008); Linda (born January 11, 2011); and Muhammed

(born June 9, 2017). As noted, Jeremy is the biological father of Tanner. G.F.

(Greg) is the biological father of Linda, but his parental rights were terminated

in a separate proceeding. Greg, Serena, and Muhammed are not subjects of this

appeal.

      Nancy has a serious, persistent substance abuse problem, primarily

involving phencyclidine (PCP) and alcohol. Since it first received the case in

December 2011, the Division made extensive, albeit unsuccessful, efforts to

help Nancy overcome her substance abuse issues and reunite her with her

children.

      The Division removed the children from Nancy's custody in October 2012

after she failed several drug tests. The Division placed Linda in a resource home

and Tanner with her father.     However, Jeremy lost custody of Tanner the

following month after he tested positive for heroin. Tanner was placed with her

sister in the resource home.

                                                                         A-4833-16T3
                                       3
      In February 2013, the Division removed the children from the resource

home and placed them with an aunt. In September 2014, the children went to

live with Jeremy's mother, C.C. (Carol). In December 2014, Jeremy executed

an identified surrender of his parental rights to Tanner, on the condition that

Carol adopt her. In February 2015, Nancy executed an identified surrender of

her rights to Tanner and Linda, also conditioned on Carol adopting them.

      In September 2015, police arrested Carol and charged her with hindering

the arrest of her son (the police had charged her son with murder). Upon

learning of the pending charge two months later, the Division advised Carol it

could not finalize her adoption of Tanner and Linda until she resolved the

charge. The Division allowed the children to remain with Carol, but began to

explore other placement options for the girls should the need arise; however,

before the charges were dismissed, Carol moved to Pennsylvania. Because the

hindering charge remained pending, Carol could not receive a license to serve

as a resource parent in Pennsylvania. As a result, in October 2016, the Division

removed Tanner and Linda and placed them in a resource home.

      The Division continued to try to assist Nancy and arranged for her to

attend parenting classes and receive substance abuse treatment. Nancy began

treatment at a rehabilitation facility but was discharged because she

                                                                        A-4833-16T3
                                       4
"participated minimally and did not stop smoking PCP." Also during this time,

Jeremy was incarcerated. The earliest he may be released is 2021.

      The Division eventually initiated termination proceedings and the matter

advanced to trial in June 2017. Following trial, the trial judge found in favor of

the Division and terminated the parental rights of both defendants.

      The trial judge determined Nancy's persistent drug use caused harm to the

children and her numerous failures to complete substance abuse treatment

demonstrated the harm would continue. The judge further determined that

Jeremy endangered the safety, health, and development of his daughter by

leading a violent lifestyle, selling drugs, violating probation, and failing to

recognize the importance of his legal problems.       The judge also found the

Division had considered several kinship placements for the girls, although none

of the options investigated proved viable. Further, the Division made significant

efforts to reunite the children with their parents.      These efforts included

visitation   services,   CADC     evaluations,   counseling,   drug    treatment,

psychological evaluations, bonding evaluations, parenting skills classes, and

more. Lastly, the judge determined that terminating the parents' rights would

cause more good than harm because the children had been out of their parents'

custody for more than five years, needed stability, and had a dedicated resource

                                                                          A-4833-16T3
                                        5
parent who made efforts to ensure the children would remain close with the ir

other siblings and families.

                                         II.

      To justify terminating parental rights, the Division must produce clear and

convincing evidence to satisfy the following four statutory prongs of the "best

interests" test:

             (1) The child's safety, health or development has been
             or will continue to be endangered by the parental
             relationship;

             (2) The parent is unwilling or unable to eliminate the
             harm facing the child or is unable or unwilling to
             provide a safe and stable home for the child and the
             delay of permanent placement will add to the harm.
             Such harm may include evidence that separating the
             child from his resource family parents would cause
             serious and enduring emotional or psychological harm
             to the child;

             (3) The Division has made reasonable efforts to provide
             services to help the parent correct the circumstances
             which led to the child's placement outside the home and
             the court has considered alternatives to termination of
             parental rights; and

             (4) Termination of parental rights will not do more
             harm than good.

             [N.J.S.A. 30:4C-15.1(a).]

                                                                         A-4833-16T3
                                         6
      These four prongs are neither discrete nor separate, but overlap "to

provide a comprehensive standard that identifies a child's best interests." N.J.

Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (citation

omitted); In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).           "The

considerations involved are extremely fact sensitive and require particularized

evidence that address[es] the specific circumstance in the given case." N.J. Div.

of Youth & Family Servs. v. R.G., 217 N.J. 527, 554 (2014) (citation omitted)

(alteration in original).   The Division must prove by clear and convincing

evidence all four statutory prongs. Ibid. To meet this standard, such evidence

must be "so clear, direct and weighty and convincing as to enable the factfinder

to come to a clear conviction, without hesitancy, of the precise facts in issue."

N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 168 (2010) (quoting

In re Seaman, 133 N.J. 67, 74 (1993)).

      Our review of a trial court's decision in a guardianship case is limited.

R.G., 217 N.J. at 552. "[T]he trial court's factual findings should be upheld

when supported by adequate, substantial, and credible evidence." Ibid. (citation

omitted). We accord deference to factual findings of the family court given its

"superior ability to gauge the credibility of the witnesses who testify before it

                                                                         A-4833-16T3
                                         7
and because it possesses special expertise in matters related to the family."

F.M., 211 N.J. at 448.

      We will not overturn a family court's findings unless they went "so wide

of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family

Servs. v. G.L., 191 N.J. 596, 605 (2007).           However, "[a] trial court's

interpretation of the law and the legal consequences that flow from established

facts are not entitled to any special deference." R.G., 217 N.J. at 552 (quoting

Manalapan Realty, LP v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)).

      On appeal, Nancy argues the Division did not meet its burden for each

prong of the best interests test. Jeremy argues the Division committed several

procedural violations in removing the children from his mother's care and that

the trial judge erred by not allowing a bonding evaluation between Tanner and

Carol.

      After reviewing the record, we find the trial judge's opinion evinced an

adequate appreciation for current legal standards focusing on the importance of

permanency in a child's life and the need for parents to timely resolve drug issues

that keep them from caring for their children.

            In our view, parents dabbling with addictive substances
            must accept the mandate to eliminate all substance
            abuse. Such unabated behavior initiates the foster care
            placement of their children and causes continuing harm

                                                                           A-4833-16T3
                                        8
             by depriving their children of necessary stability and
             permanency….          [T]he delayed reunification,
             accompanied by the concomitant consequence of
             allowing the child's attachment to a resource caregiver
             continues the significant harm to the child….

             [N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J.
             Super. 228, 240 (App. Div. 2010) (citations omitted)].

      "We have made it clear that [c]hildren must not languish indefinitely in

foster care while a birth parent attempts to correct the conditions that resulted

in an out-of-home placement." N.J. Div. of Youth & Family Servs. v. L.J.D.,

428 N.J. Super. 451, 483 (App. Div. 2012) (citation omitted) (alteration in

original).

      A parent's continuing failure to provide a safe and stable home for a child

constitutes harm that can satisfy the first and second prongs of the best interests

test. F.M., 211 N.J. at 449-52; In re Guardianship of DMH, 161 N.J. 365, 378-

83 (1999); T.S., 417 N.J. Super. at 244-45. A drug-addicted parent causes harm

when she leaves her child with a surrogate caretaker and lets the child live in

limbo for years.    Even a loving, well-intentioned parent causes harm by

inflicting that psychological insecurity on her child. See K.H.O., 161 N.J. at

363 ("We recognize that the continuing inability of the mother to overcome her

own addiction in order to care for her child constitutes endangerment of the

child."). We acknowledge that making the judgment as to how long to give

                                                                           A-4833-16T3
                                        9
a parent to achieve sobriety – calculating the odds that giving her one more

chance to achieve success will yield a better or worse result for the child – must

be made on a case by case basis and is best left to the expertise of Family Part

judges. See F.M., 211 N.J. at 448-49.

      This case does not involve a parent who engages in the occasional use of

marijuana or an occasional overuse of alcohol. This case involves a parent who

uses PCP, a highly dangerous drug. Nancy tested positive for PCP at least six

times during her involvement with the Division.         She failed to complete

substance abuse treatment despite numerous opportunities and attempts to do so.

Thus, in light of Nancy's continued and unabated use of PCP, we cannot find the

trial judge's determination clearly erroneous.

      The Division also made extensive efforts to keep the children with family.

The Division placed Tanner with her birth father initially. The Division then

placed Tanner and Linda with an aunt and later with Jeremy's mother. The

Division considered other relatives, but they failed to complete paperwork or

did not want to take both girls. Carol never completed the necessary steps to

obtain a new license after the charges against her were dropped. The record

does not reflect any other viable option for the Division except for Tanner and

Linda to continue in their resource home.

                                                                          A-4833-16T3
                                       10
      Lastly, as to the fourth prong, if a parent exposes a child to harm, "has been

unable to remediate the danger to the child, and … the child has bonded with foster

parents who have provided a nurturing and safe home, in those circumstances

termination of parental rights likely will not do more harm than good." N.J. Div. of

Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). The Division offered expert

testimony that the children had developed an "exceptionally high level bond" with

the resource parent. Further, the Division's expert testified the foster parent could

mitigate any harm that might arise from the termination of the biological parents'

rights, partly because the foster parent would allow the children to continue

relationships with their biological families.

      In addition, Linda told the Division case worker she did not want to live with

her mother. While she preferred to live with Carol, she would rather remain with

her foster parent rather than returning to her mother. The record demonstrates

removing the children from the foster parent would have caused the children more

harm than good.

      Jeremy argues the Division failed to properly notify Carol of her right to

appeal the rescission of her license when she moved to Pennsylvania; however,

Jeremy concedes the Division "verbally told [Carol] she could appeal" the

decision. Further, the applicable regulation only requires written notice of the

                                                                             A-4833-16T3
                                         11
right to appeal when "there is a difference of opinion between the resource

family parent and the Division representative regarding the removal." N.J.A.C.

3A:17-2.6. The record does not show any dispute or objection from Carol.

       Jeremy also argues the Division failed to notify the Family Part when

removing the children from Carol's care. In non-emergency situations, the Division

should notify the parties at least thirty days in advance. N.J.A.C. 3A:17-2.3. The

Division must also notify the court and the law guardian. N.J.A.C. 3A:17-2.6. The

record demonstrates the court knew of the removal. Further, Carol informed the

Division of her plan to move to Pennsylvania on October 5, 2016. She completed

her move by October 24, 2016. Therefore, it was impossible for the Division to give

at least thirty days' notice.

       Lastly, Jeremy argues the trial court improperly denied him the ability to

"proffer expert evidence comparing the quality of [Tanner]'s bonding with the

grandmother who raised her … and the resource parent who wishes to adopt her."

Jeremy argues the issue "was not the comparison of [Tanner]'s bonds with [Jeremy

himself]. But the bond between [Tanner] and [Carol] was crucial to weighing

whether the termination was appropriate."

       The trial judge rejected Jeremy's initial request for the comparative bonding

evaluation on the basis of relevancy. This analysis was correct. The issue at trial

                                                                            A-4833-16T3
                                        12
concerned the termination of parental rights – not the placement of the children. Any

concerns over the placement of the children should have been addressed when

placement occurred.

      Even if a bonding evaluation had occurred, the court could not have placed

the children with Carol. Because she moved to Pennsylvania, Carol needed a new

license to serve as resource parent for the children. At the time of trial, she had not

obtained one. We find no reason to alter the Family Part's judgment of guardianship

terminating parental rights.

      Affirmed.

                                                                               A-4833-16T3
                                         13


                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
MIKEISHA BLACKMAN, et al.,                )
                                          )
            Plaintiffs,                   )
                                          )
      v.                                  )                  Civil Action No. 97-1629 (PLF)
                                          )
DISTRICT OF COLUMBIA, et al.,             )                  Claim of Anne & Brantley Davis,
                                          )                   parents and next friends of B.D.
            Defendants.                   )
_________________________________________ )

                           MEMORANDUM OPINION AND ORDER
               This matter is before the Court on plaintiffs Anne and Brantley Davis’ motion for

expenses incurred litigating a successful motion for a preliminary injunction on behalf of minor

student B.D. Plaintiffs’ Fee Petition, Dkt. No. 2404 (Nov. 6, 2013). The amount requested,

$8,780.20, reflects 22.5 hours expended by plaintiffs’ attorney, Diana Savit, at an hourly rate of

$390.00 per hour, plus $5.20 in reimbursable costs. The government subsequently filed a

response agreeing that plaintiffs were entitled to fees for the 22.5 hours expended by plaintiffs’

counsel. The government submitted, however, that plaintiffs’ counsel should be paid at a rate

equal to three-quarters of the rate established by the so-called Laffey Matrix. See Laffey Matrix

– 2003-2014, available at http://www.justice.gov/usao/dc/divisions/Laffey_Matrix%202014.pdf.

Under the government’s formulation, plaintiffs are entitled to no more than $8,526.07. See

Defendant’s Notice Regarding Plaintiffs’ Motion, Dkt. No. 2408 (Dec. 5, 2013).

               The Laffey schedule of attorney’s fees, first developed based on information

about the prevailing rates charged by federal litigators in the District of Columbia, is maintained

by the United States Attorney’s Office for the District of Columbia. See Laffey Matrix n.1. In
this circuit, the rates contained in the Laffey Matrix are typically treated as the highest rates that

will be presumed to be reasonable when a court reviews a petition for statutory attorney’s fees.

See Rooths v. Dist. of Columbia, 802 F. Supp. 2d 56, 61 (D.D.C. 2011); Blackman v. Dist. of

Columbia, 59 F. Supp. 2d 37, 43 (D.D.C. 1999). Under Laffey, the hourly rate for an attorney

with Ms. Savit’s experience is $510. 1 Ms. Savit therefore, commendably, has already reduced

her rate in this case below what she might normally charge.

               Although the USAO Laffey Matrix provides an appropriate starting point for a

determination of a reasonable rate, the rates contained in the matrix represent, as already noted,

presumptive maximum rates. Furthermore, those maximum rates are appropriately paid in

actions constituting “complex federal litigation.” Covington v. Dist. of Columbia, 57 F.3d 1101,

1103 (D.C. Cir. 1995). Many judges of this Court, including the undersigned, generally cap

attorney’s fees at three-quarters of the Laffey rate for routine IDEA cases – where the claims

involve “simple facts, little evidence, and no novel or complicated questions of law.” Rooths v.

Dist. of Columbia, 802 F. Supp. 2d at 63. The Court agrees that the plaintiffs’ motion for a

preliminary injunction is more akin to a routine IDEA case than the sort of complex litigation

that would merit compensation at the full Laffey rate. The dispute was presented and resolved in

a relatively informal setting before the Special Master, and plaintiffs have not shown that the

case involved complicated legal or evidentiary issues. Under these circumstances, the Court

finds it appropriate to cap Ms. Savit’s hourly rate at $382.50, equal to three-quarters of the

relevant Laffey rate – though it must ask why the parties could not have resolved this quibble

       1
               In their papers, both parties indicate that the relevant Laffey rate is $505,
representing the June 2012 – May 2013 rate for an attorney with 20 or more years of experience.
See Declaration of Diana M. Savit ¶ 10, Exhibit 1 to Plaintiffs’ Fee Petition; Defendant’s Notice
Regarding Plaintiffs’ Motion at 2. Because Ms. Savit’s services were rendered in July and
August 2013, however, the Court relies on the rate for June 2013 – May 2014, which is $510 per
hour.
                                                   2
over $254.13 without burdening either the Court or themselves. The Court will award $8,606.25

($382.50/hour x 22.5 hours) in attorney’s fees.

                Plaintiffs also seek leave to file a supplemental motion for the fees and expenses

incurred in litigating this motion. It is established that the Court may award additional fees to a

prevailing party for “time reasonably devoted to obtaining attorney’s fees.” Kaseman, K.K. v.

Dist. of Columbia, 444 F.3d 637, 640 (D.C. Cir. 2006) (quoting Envt’l Def. Fund v. EPA, 672

F.2d 42, 62 (D.C. Cir. 1982)); see also Ctr. for Biological Diversity v. U.S. Dep't of Interior, 696

F.3d 1, 6 (D.C. Cir. 2012). Because plaintiffs likely are entitled to fees for the time spent in

reviewing billing entries and preparing certain portions of their fees petition, the Court will grant

plaintiffs leave to file a supplemental fees motion. The Court cautions plaintiffs, however, that

as the only substantive legal dispute between the parties relating to fees (i.e., the 3/4 Laffey rate

cap) was resolved in favor of the government, the Court is unlikely to award fees for expenses

incurred preparing arguments relating to plaintiffs’ counsel’s hourly rate. Plaintiffs’ counsel also

is directed to confer with government counsel as to possible settlement prior to filing any further

fee petition.

                Accordingly, it is hereby

                ORDERED that [Dkt. No. 2404] plaintiffs’ motion for attorney’s fees is

GRANTED IN PART and DENIED IN PART; it is

                FURTHER ORDERED that the District of Columbia shall pay plaintiffs

$8,611.45, representing $8,606.25 in attorney’s fees and $5.20 in costs, on or before July 28,

2014. If this amount is not paid on or before July 28, 2014, it will bear interest at the rate

established by 28 U.S.C. § 1961 from July 29, 2014; and it is

                                                  3
               FURTHER ORDERED that if plaintiffs wish to seek reasonable fees for time

spent preparing the instant fee petition, plaintiffs must file a motion for such fees on or before

July 28, 2014. Prior to filing such motion, plaintiffs’ counsel shall discuss the anticipated motion

with opposing counsel, either in person or by telephone, in a good-faith effort to resolve the

matter or, if the matter cannot be resolved out of court, to narrow the areas of disagreement.

Plaintiffs shall include in their motion a statement that the required discussion occurred, and a

statement as to whether the motion is opposed.

               SO ORDERED.

                                               /s/_______________________________
                                               PAUL L. FRIEDMAN
DATE: June 27, 2014                            United States District Judge

                                                  4


923 F.2d 450
UNITED STATES of America, Plaintiff-Appellee,v.Anthony Tyrone ANDERSON (90-5313) and Michael Wayne McNeil(90-5507), Defendants-Appellants.
Nos. 90-5313, 90-5507.
United States Court of Appeals,Sixth Circuit.
Argued Nov. 6, 1990.Decided Jan. 15, 1991.

W. Hickman Ewing, Jr., U.S. Atty., Frederick H. Godwin, Asst. U.S. Atty.  (argued), Office of the U.S. Atty., Memphis, Tenn., for U.S.
James D. Gass (argued), Jackson, Tenn., for Anthony Tyrone Anderson.
Lloyd R. Tatum (argued), Tatum & Tatum, Henderson, Tenn., for Michael Wayne McNeil.
Before GUY and BOGGS, Circuit Judges, and BERTELSMAN, District Judge.*
BOGGS, Circuit Judge.

1
Defendants Anthony Anderson and Michael McNeil appeal from their convictions for possession of a firearm by a convicted felon, in violation of 18 U.S.C. Sec. 922(g).  Both defendants appeal from the district court's denial of their motions to suppress the firearms they possessed.  Anderson also appeals from his enhanced sentence under the armed career criminal provisions of 18 U.S.C. Sec. 924(e).  That section provides that a person convicted of violating Sec. 922(g) who has previously been convicted of three violent felonies, a term defined in Sec. 924(e)(2)(B), shall receive a minimum fifteen-year sentence, not subject to suspension, probation, or parole.  Finally, Anderson contends that he was selectively prosecuted, and that inclusion of his prior conviction for burglary as one of his three prior felonies under Sec. 924(e) violated his right to due process.  For the reasons that follow, we affirm the district court on all counts.

2
* The defendants were apprehended as the result of chance and good police work.  Sergeant William Blackwell and Haywood County Sheriff Raymond Russell were driving one afternoon along Highway 76 near the line between Madison and Haywood counties in Tennessee.  The officers knew that this area had recently experienced many burglaries.  The officers noticed a small blue foreign car quickly backing out of a residential driveway, almost hitting a truck on Highway 76.  They noticed that both of the occupants of the car were black, and both officers personally knew that the occupants of the residence that the car backed out of were white.  As the small car drove by the officers at a high rate of speed, the officers noticed that the car was so heavily loaded that the chassis was rubbing against the right tire.  The officers tried to get a license check on the car, but could not because the license plate was located in the rear windshield and not clearly visible.

3
The officers followed the car onto westbound I-40.  The blue car entered the interstate highway quickly and weaved in and out of traffic.  Still unable to read the license plate despite the use of binoculars, the officers stopped the car on the highway.

4
The officers approached the car from different sides, and each officer spoke with a different defendant.  Neither Anderson nor McNeil could produce a driver's license or any other form of identification.  The officers then noticed that a quilt was covering many things loaded on the car's back seat.  In response to Officer Russell's question, Anderson said that the things in the back seat belonged to a Margaret Reed.  Anderson said that the two of them were moving Ms. Reed from Brownsville to Memphis.  Anderson then opened the door to the back seat, lifted the quilt, and showed Russell a microwave.

5
Officer Russell, coincidentally, knew Margaret Reed personally.  He called the police radio dispatcher and told the dispatcher to call Reed and ask her if she was moving to Memphis and if she owned a microwave.  Reed was contacted, and told the dispatcher that she was not moving to Memphis and did not own a microwave.

6
Confronted with Reed's denial of their story, the defendants changed their tune.  Anderson said that instead of moving Reed from Brownsville to Memphis, he was really moving a person named Lee from Memphis to Nashville.  This explanation sounded disingenuous to the officers because the car was headed toward Memphis and away from Nashville.  The defendants' new story also had other inconsistencies.  Anderson said that the blue car belonged to his cousin, while McNeil said that it belonged to Anderson's girl friend.

7
Sergeant Blackwell decided at this point that the goods in the back seat might be stolen.  The officers then told the defendants that the officers would take them back to the county jail for further investigation.  The officers told the defendants that they were free to leave, but that they would not be allowed to drive the car because neither defendant was carrying a driver's license.  Both defendants and their car were driven back to the county jail by the officers.

8
Both officers testified that the defendants were not under arrest at the time they were told to accompany the officers to the jail.  Nevertheless, the booking sheet from the jail states that the defendants were arrested at "1400" (2 p.m.), that they arrived at the station at 1445, and Officer Russell testified that he read the defendants their rights at 1513 and 1517.  Both officers testified that the defendants had free access to the car during their initial confinement, but were not given the keys.  The firearms (two pistols, a shotgun, and a Marlin rifle) were found in and around the defendants' car on the Haywood County Jail property at some undetermined point during the defendants' confinement.  Three of these weapons had been recently stolen from their owners.  The defendants were not formally booked until 1833, over 4 1/2 hours after they were first told to accompany the officers back to the county jail.

9
Sheriff Russell referred the defendants to the Federal government for potential prosecution under Sec. 922(g).  The United States Attorney subsequently decided to commence the prosecution.  The United States Attorney decided to seek the enhanced sentences available under Sec. 924(e) after the defendants filed motions to suppress the firearms.  The defendants' appeals were timely filed after their convictions and sentencing.

II

10
Anderson first contends that he was selectively and vindictively prosecuted.  He rests his contention on the activity of Sheriff Russell rather than the United States Attorney.  Anderson provides evidence that Sheriff Russell does not perform background checks on all persons arrested in his jurisdiction to determine if any have prior felony records.  Therefore, there might be some persons who could have been referred to the United States Attorney's office for prosecution under Sec. 922(g) who were not referred.

11
Anderson contends that this practice violates the United States Constitution.  Anderson contends that under Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985), the government must treat all similarly-situated lawbreakers similarly.  The fact that Sheriff Russell works for a county in the state of Tennessee and the U.S. Attorney works for the United States does not deter Anderson.  Anderson alleges, without any supporting facts, that the United States had no discretion in deciding whether to prosecute cases referred to him by Sheriff Russell.

12
Anderson has confused two separate prosecutorial actions that have been held to violate the Due Process Clause, selective prosecution and vindictive prosecution.  A prosecutor selectively prosecutes someone when three things occur.  First, he must single out a person belonging to an identifiable group, such as those of a particular race or religion, or a group exercising constitutional rights, for prosecution even though he has decided not to prosecute persons not belonging to that group in similar situations.  Wayte, 470 U.S. at 608 n. 10, 105 S.Ct. at 1531 n. 10.    Second, he must initiate the prosecution with a discriminatory purpose.  Finally, the prosecution must have a discriminatory effect on the group which the defendant belongs to.  Wayte, 470 U.S. at 609, 105 S.Ct. at 1531-32.

13
A prosecutor vindictively prosecutes a person when he or she acts to deter the exercise of a protected right by the person prosecuted.  United States v. Andrews, 633 F.2d 449, 453-55 (6th Cir.1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1382, 67 L.Ed.2d 358 (1981).  A person who claims he has been vindictively prosecuted must show that the prosecutor has some "stake" in deterring the petitioner's exercise of his rights, and that the prosecutor's conduct was somehow unreasonable.  Id.

14
Anderson has not established a prima facie case under either doctrine.  Anderson has not shown that he was part of a group that the prosecutor was trying to harm by prosecuting him.  Anderson has also not shown that he was singled out for prosecution because he has exercised any constitutional right.  In the absence of either allegation, Anderson's contention that he was improperly prosecuted has no merit.

III

15
Anderson also contends that his enhanced sentence under Sec. 924(e) denies him due process because other criminals with the same criminal record would not be subject to enhanced sentencing in other circuits.  Specifically, Anderson notes that one of his three prior felony convictions is for burglary.  Anderson contends that the circuits are split regarding the definition of "burglary" for the purposes of Sec. 924(e).  Since the circuit split would result in a criminal being subjected to a different sentence depending upon the site of his conviction, Anderson contends that his right to due process is violated.

16
This argument has become moot regardless of its theoretical merit.  The Supreme Court resolved the circuit split in Taylor v. United States, --- U.S. ----, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).  The Court defined "burglary" as "any crime ... having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime."    Taylor, 110 S.Ct. at 2158.    Anderson was convicted of violating Tennessee's burglary statute, and it contains all of these elements.  Therefore, the inclusion of Anderson's prior burglary conviction was proper.

IV

17
* Both defendants made a motion to suppress before the district court, each motion resting on a different alleged violation of the fourth amendment.  Both motions contended that the firearms were discovered subsequent to a fourth amendment violation, and that therefore the firearms should be suppressed.  McNeil's motion alleged that the firearms were illegally seized because the initial stop of the defendants on the highway was unconstitutional.  Anderson's motion did not contest the legality of the initial stop, instead contending that the defendants had been arrested without probable cause before the discovery of the firearms.  We will review each motion in turn.

B

18
We first pause to note that we review the factual findings underlying a district court's denial of a motion to suppress under the "clearly erroneous" standard.  United States v. Morgan, 743 F.2d 1158, 1162 (6th Cir.1984), cert. denied, 471 U.S. 1061, 105 S.Ct. 2126, 85 L.Ed.2d 490 (1985).  In reviewing the district court's denial of McNeil's and Anderson's motions to suppress, we will also determine if the officers' seizure of the defendants on the highway was constitutional.  We note that seizures intended to further investigation of possibly criminal behavior do not require a showing of probable cause if they are justified by specific and articulable facts that give rise to a reasonable suspicion of criminal activity.  Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1879-81, 20 L.Ed.2d 889 (1968).  This standard will govern our review of McNeil's motion.  As Anderson contends that the defendants were arrested without probable cause by the officers on the highway despite the lack of formal arrest procedures, Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), we must examine the facts to determine if the officers had probable cause to make an arrest at that time.  "It is basic that an arrest with or without a warrant must stand upon firmer ground than mere suspicion."    Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).  The Supreme Court has stated that "[p]robable cause exists where the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that 'an offense has been or is being committed [by the person to be arrested].' "  Dunaway, 442 U.S. at 208 n. 9, 99 S.Ct. at 2254 n. 9 (citations omitted).

C

19
McNeil contends that the officers did not have a reasonable suspicion that the defendants were engaged in criminal activity.  McNeil correctly notes that one of the reasons that the officers gave for stopping the defendants was the defendants' race.  McNeil relies on this fact and contends that defendants were stopped solely because of their race.  If McNeil's contention were correct, the initial stop of the defendants would be unconstitutional because suspicions based solely on the race of the person stopped cannot give rise to a reasonable suspicion justifying a Terry stop.  United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2581-82, 45 L.Ed.2d 607 (1975).

20
The district court specifically found, however, that the officers did not stop the defendants solely because of their race.  The district court noted that the defendants had backed their car out of the residence at a high rate of speed, and that the car was so heavily loaded that the chassis rubbed against the rear right wheel.  The defendants' license plate was also not easily visible while the car was moving because it was placed in the rear windshield rather than in the normal location on the rear of the car.  Given that the area had recently experienced a spate of burglaries, the district court reasoned that these facts combined to create a reasonable suspicion in the minds of the officers, justifying a Terry stop for investigative purposes.

21
We cannot find that the district court was clearly erroneous in rejecting the motion to dismiss.  This court has held that reasonable suspicion can be based on a totality of circumstances no one of which standing alone would create a reasonable suspicion.  United States v. Knox, 839 F.2d 285, 288-90 (6th Cir.1988), cert. denied, 490 U.S. 1019, 109 S.Ct. 1742, 104 L.Ed.2d 179 (1989).  The district court specifically found that the officers' reasonable suspicion was founded on the combination of potentially suspicious facts.  As McNeil has not offered any evidence that raises questions about the officers' veracity, we have no basis for reversing the district court.

D

22
We now examine Anderson's contention that the defendants were arrested on the highway when the officers told the defendants to accompany them to the county jail.  If the defendants were arrested without a warrant by the officers on the highway, then the arrest is constitutional only if officers can show that probable cause existed at the time of the arrest.1 We hold that the officers had probable cause to suspect the defendants had committed a crime, and we therefore hold that the officers' actions in transporting the defendants to the county jail were constitutional.

23
We begin by noting that we are not deciding that the defendants actually were arrested by the police on the highway.  To win on his motion, Anderson must prove both that he was arrested and that the arrest was without probable cause.  As we hold that probable cause existed to justify a warrantless arrest of defendants on the highway, we need not find that they actually were arrested to deny Anderson's motion.

24
We believe that the entire situation surrounding the stop and ensuing investigation of defendants gave the officers probable cause to arrest them on the highway.  The officers had the following information available to them at the moment they decided to bring the defendants to the county jail.  They had observed a car heavily loaded with goods speeding away from an area known to them to have recently experienced a spate of burglaries.  They also knew that the defendants were not leaving their own house so quickly:  the owners of the house were white, while the defendants are black.  Once stopped, the defendants produced no identification of any sort.

25
The defendants also had lied to the officers and given them implausible explanations when asked where they were transporting the goods in the back seat.  The defendants had lied to the officers when they said they were moving Margaret Reed to Memphis.  They had lied again when they implied that the microwave in the back seat belonged to Ms. Reed.  The officers had also found their next explanation, that they were moving a person named Lee from Memphis, wholly implausible.  For starters, the defendants were headed toward Memphis, not away from it, when they were stopped.  The defendants were also unable to remember the first name of the person whom they were allegedly moving to Memphis.  Finally, the officers also knew that each defendant had told the officers that a different person owned the car they were driving.

26
We believe that all of these events combine to produce probable cause to arrest the defendants on the highway.  The test for the existence of probable cause is wholly objective.  Probable cause exists when a "man of reasonable caution," Dunaway, 442 U.S. at 208, n. 9, 99 S.Ct. at 2254, n. 9, would be warranted in the belief that the person arrested had or will commit a crime.  It is entirely reasonable for the officers to have reached the conclusion that the defendants were racing away from the house and the area because they were transporting booty from another of the recent spate of burglaries.  The defendants were unable to give the officers a plausible explanation of their behavior that would dispel that conclusion.  The defendants' lack of identification and the placement of their car's license plate in the rear windshield prevented their easy identification;  both of these facts could support a conclusion that the defendants were up to no good.  "Although many of these circumstances, taken alone, arguably could have been consistent with innocent or criminal behavior, when viewed in their totality they would lead a prudent person to believe that [defendants were] engaged in criminal activity."    United States v. Holzman, 871 F.2d 1496, 1504 (9th Cir.1989).

27
Other courts have found elements of these events to uphold a finding of probable cause in other circumstances.  The Fifth Circuit has held that a suspect's lying to law enforcement about the origin of his travel would, in conjunction with other facts establishing a reasonable suspicion that the person was involved in criminal activity, justify a man of reasonable caution in finding probable cause to perform a warrantless arrest.  United States v. Espinoza-Seanez, 862 F.2d 526, 533 (5th Cir.1988).  Accord State v. Valenzuela, 121 Ariz. 274, 589 P.2d 1306 (1979) ("A false answer in response to questions by the police based on the police officer's personal knowledge may constitute probable cause").  Among the factors that the Fifth Circuit noted helped to create reasonable suspicion in Espinoza-Seanez was evidence that a car is "riding low in the back" and is traveling from an area where the police "had suspicion that smuggling activity was taking place."    Espinoza-Seanez, 862 F.2d at 531, 533.    This combination of factors is close to, although weaker than, those we face here, and we see no reason to disagree with the Fifth Circuit's conclusion that they could give rise to a finding of probable cause.

28
Our holding is not disturbed by the observation that it is unclear whether the officers themselves thought they had probable cause.  While both officers testified that they did not arrest the defendants on the highway, the defendants' booking sheets record them as being arrested at 1400, which is approximately the time when the officers made the decision to transport them back to the jail.  It is true that the government states in its brief that "when the firearms were found in the vicinity of the car, the officers then had probable cause to arrest the individuals."    But it is also true that Sergeant Blackwell testified that he decided that the goods in the car could have been stolen after hearing that Ms. Reed was not moving and that the defendants had come up with contradictory stories regarding the car's ownership.  Thus, we cannot be sure that the officers did not subjectively believe that they had probable cause to arrest the defendants on the highway.

29
Our conclusion would not be disturbed even if the evidence clearly showed that the officers subjectively believed that they did not have probable cause to arrest because the subjective belief of the arresting officer is irrelevant in determining whether probable cause exists.  As previously noted, probable cause is determined by an objective examination of all of the circumstances known to the officers.  Just as a subjective belief by the arresting officer would not establish probable cause where none existed, a subjective belief by the arresting officer cannot destroy probable cause where it exists.  "[T]he fact that the officers did not believe there was probable cause and proceeded on a consensual or Terry-stop rationale would not foreclose the State from justifying Royer's custody by proving probable cause...."  Florida v. Royer, 460 U.S. 491, 507, 103 S.Ct. 1319, 1329, 75 L.Ed.2d 229 (1982).  Accord United States v. Moses, 796 F.2d 281, 284-85 (9th Cir.1986);  United States v. Roy, 869 F.2d 1427, 1432-33 (11th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 72, 107 L.Ed.2d 38 (1989).

30
Nor is our conclusion disturbed by the fact that the officers were not aware that the defendants had committed any particular burglary.  "[T]here is probable cause if a 'succession of superficially innocent events had proceeded to the point where a prudent man could say to himself that an innocent course of conduct was less likely than a criminal one.' "    1 W. LaFave, Search and Seizure, Sec. 3.2(e) at 595 (citations omitted).  The Second Circuit has held that an officer who has probable cause that the defendant has committed a crime need not know precisely what crime the defendant committed.  United States ex rel. Frasier v. Henderson, 464 F.2d 260, 262-63 (2d Cir.1972).  In this case, the officers had probable cause to believe that the goods were stolen, but could not know whether the defendants were burglars, in possession of stolen property, or perpetrators of other crimes relating to the goods.  Accordingly, we agree with LaFave and the Second Circuit that knowledge of the precise crime committed is not necessary to a finding of probable cause provided that probable cause exists showing that a crime was committed by the defendants.

V

31
For the forgoing reasons, we AFFIRM the district court's denial of the defendants' motions to suppress the firearms. We AFFIRM Anderson's conviction and his enhanced sentence under Sec. 924(e).

*
 The Honorable William O. Bertelsman, United States District Judge for the Eastern District of Kentucky, sitting by designation

1
 Because we hold that the officers had probable cause to arrest the defendants on the highway after the defendants' first story was proven false, we need not decide, as the government urges us to, whether the officers' actions in transporting the defendants to the county jail and detaining them there could also be held constitutional as a continuation of the initial Terry stop.  The officers detained the defendants in transit and at the jail for almost 5 hours before formally booking them.  We note that the Supreme Court has stated that investigative stops justifiable under Terry may not be of indefinite duration, United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985).  The Court in Sharpe held that a 20-minute detention was a constitutional Terry stop, noting that "it [is] appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant."    Sharpe, 470 U.S. at 686, 105 S.Ct. at 1575.    We express no view on whether the almost 5-hour detention would meet the standard in Sharpe
Because we hold that probable cause exists for the arrest of the defendants, we also have no cause to consider the opinion of the Seventh Circuit in the recent case of United States v. Chaidez, 919 F.2d 1193 (October 25, 1990).  The Seventh Circuit held in Chaidez that police actions in detaining and restraining suspects need not be evaluated on a bi-polar scale, where the acts must be classified either as a Terry detention requiring only a "reasonable suspicion" or as a de facto custodial arrest requiring probable case.  The Circuit instead held that such acts must be evaluated under a "reasonableness" standard if they are more intrusive than a typical Terry stop but not intrusive enough to constitute a custodial arrest.  Chaidez, at 1197-98.    A variation of the facts before us, such as an inability on the part of the police to reach Margaret Reed rather than Ms. Reed's providing clear proof that the defendants' original story was a lie, might have encouraged us to consider the Seventh Circuit's "sliding scale" approach.  As the case stands, we have no occasion to offer an opinion regarding the Seventh Circuit's standard.


67 U.S. 571 (____)
2 Black 571
KELLOGG
v.
FORSYTH.
REYNOLDS
vs.
FORSYTH.
Supreme Court of United States.

Mr. Ballance, of Illinois, for Plaintiffs in Error.
Mr. Williams, of Illinois, for Defendants.
Mr. Justice CLIFFORD.
These are writs of error to the Circuit Court of the United States for the Northern District of Illinois. Both suits were brought in the Court below by the present defendant against the respective plaintiffs in error. They were actions of ejectment, and were respectively commenced on the 18th day of November, 1854, to recover possession of certain but different parts of claim numbered seven in the village of Peoria, as confirmed to Thomas Forsyth under the Act of Congress, approved the 3d day of March, 1823, entitled *572 an Act to confirm certain claims to lots in the village of Peoria, in the State of Illinois. In each case the defendants pleaded the general issue, and for the sake of brevity, it may be well to say, that the proceedings in the two suits, are so nearly alike that it will be unnecessary to refer to them separately, except in a few particulars, which will be specially noticed. Parties went to trial in both cases at the July Term, 1856, and the verdict in each, under the instructions of the Court, was in favor of the plaintiff, and the respective defendants excepted. Plaintiff claimed title in each case under a patent to the legal representatives of Thomas Forsyth, dated the 16th day of December, 1845, and it was admitted at the trial that the plaintiff had that title. On the other hand, the defendants in the respective suits claimed the premises under a patent issued to John L. Bogardus, dated the 5th day of January, 1838, and granting to him the southeast fractional quarter of section nine in township eight north, of range eight east, in the District, of lands subject to sale, at Quincy in the State of Illinois, subject, however, to all the rights of any and all persons claiming under the Act of Congress of the 3d of March, 1823, entitled as already described. Premises in controversy are included in that patent, and it was admitted at the trial that the defendants in the respective suits have had the actual possession of the land for which they are sued by residences thereon for ten years next preceding the commencement of the suits. Other admissions, as to the possession of the premises by the defendants, were made at the same time, but it is not necessary to refer to them in this investigation. Defendants in the first case requested the Court to instruct the jury that the title under which they claimed was a title deducible of record from the United States, and that the plaintiff, inasmuch as he admits that they had been in possession more than seven years before the suit was commenced, is barred by the Illinois Statute of Limitations; but the Court refused the prayer, and among other things instructed the jury that the entry and patent under which defendants claimed were subject to the rights of any and all persons claiming under the Act of Congress of the 3d of March, 1823, so that no one claim *573 ing under the patent, and by virtue thereof, could claim under the Statute of Limitations for seven years to have entered into the possession of the lot under the claim or color of title Prayers for instruction substantially the same were also presented by the defendants in the other case, and the record shows that they were refused by the Court, and that the instructions given to the jury were in all respects the same as those already recited.
1. It is insisted by the plaintiff, in the first place, that the bill of exceptions does not show that the rulings of the Court in refusing to instruct the jury as requested, and in respect to the instructions given, were properly excepted to at the time the rulings were made. But sufficient appears to show that the prayers for instruction were presented, and the instructions given before the jury retired from the bar of the Court, and the statement at the close of the bill of exceptions and immediately following the instructions given is, that the "defendants then and there excepted" to the instructions, rulings, and decisions of the Court. Evidently the objection is substantially the same as that considered in the case of Dredge et al. vs. Forsyth, decided at the present term, and for the reasons there given it is overruled. United States vs. Brietling, (20 How., 252).
2. In the second place, it is insisted by the plaintiff that the possession of the defendants were not adverse to the title of the plaintiff. He states the proposition, but furnishes no explanation of the grounds on which it rests. Unless it is founded on the saving clause in the patent of the defendants, there is nothing in either case to give it the slightest support; and if it is founded upon that clause, it is a sufficient answer to it to say, that it proceeds upon an erroneous view as to the legal effect of the patent. Bryan et al. vs. Forsyth, (19 How., 338); Mahan et al. vs. Forsyth, (24 How., 175); Gregg vs. Tesson, (1 Black., 150).
3. Suggestion is also made by the plaintiff that the title of the defendants is not such as is required by law to secure to them the benefit of the seven years Limitation Act of the State of Illinois, but the point has been so frequently ruled otherwise by the State Court, and by this Court, that we do not think it neces *574 sary to give it any further examination. Suffice it to say, that in our opinion the instructions requested should have been given, and those given should have been withheld. The respective judgments of the Circuit Court are accordingly reversed and the causes remanded, with instructions in each case to issue a new venire.


130 U.S. 684 (1889)
JONES
v.
VAN DOREN.
No. 202.
Supreme Court of United States.
Argued March 14, 1889.
Decided May 13, 1889.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MINNESOTA.
*688 Mr. Charles E. Flandrau and Mr. Jeremiah Leaming for appellant.
Mr. J.M. Gilman (with whom was Mr. C.K. Davis on the brief) for appellees.
*690 MR. JUSTICE GRAY, after stating the case as above reported, delivered the opinion of the court.
The only difference between the original and amended bills is that the first alleges that the defendant Jones took the conveyance of the plaintiff's right of dower upon an express trust for her, whereas the second alleges that he procured the conveyance from her by fraudulent misrepresentations as to the nature of the instrument, creating a trust by operation of law in *691 her favor. The other facts alleged in the two bills are substantially identical. Each bill proceeds upon the ground that the defendant Jones was a trustee for the plaintiff, and that the defendant Van Doren, taking the land from him with notice of all the facts, was affected by the trust; and the object of both bills is the same, to obtain the right of dower of which the plaintiff has been deprived by the acts of the defendants, and to which she was entitled under the laws of Minnesota in force at the time of her husband's death. Pub. Stat. 1849-1858, c. 36, § 1.
The amendment was therefore one which the court in the exercise of its discretion might properly allow, and the motion to strike the amended bill from the files was rightly denied. Hardin v. Boyd, 113 U.S. 756.
But we are of opinion that the court erred in sustaining the demurrer to the amended bill.
One who by fraudulent misrepresentations obtains a conveyance from the owner of any interest in property, real or personal, is in equity a trustee ex maleficio for the person defrauded; and any one taking the property from such trustee with notice of the fraud and of the consequent trust is affected by the trust. Tyler v. Black, 13 How. 230; National Bank v. Insurance Co., 104 U.S. 54; Moore v. Crawford, 130 U.S. 122. When a trustee, dealing with the trust property together with property of his own, as one mass, conveys part of the whole to a purchaser who takes it for value, in good faith, without notice of the fraud or of the trust, and who therefore acquires a good title, the question how far the rest of the property shall be charged with the trust, so as fully to indemnify the person defrauded, can only be determined in a court of equity.
In the present case, upon the facts alleged in the amended bill, and admitted by the demurrer, the defendant Jones obtained a conveyance of the plaintiff's dower interest by fraud, and held that interest in trust for her. The defendant Van Doren, taking the property with full notice, was equally affected by the fraud and bound by the trust. Parts of the property, having been conveyed to bona fide purchasers, were *692 beyond the reach of the plaintiff. Full, adequate and complete relief, either by awarding to the plaintiff her dower in the whole out of the part not so conveyed, or by awarding her dower in that part only, with damages for having been fraudulently deprived of her interest in the rest, could not be had in an action at law. The case made in the bill, therefore, by reason of the fraud, the trust, and the peculiar relief which the conduct of the defendants has made necessary to be given in order fully to indemnify the plaintiff, is clearly within the jurisdiction of a court of equity. Herbert v. Wren, 7 Cranch, 370.
The learned judge of the Circuit Court, in his opinion sustaining the demurrer to the amended bill, recognized that "the fraud alleged, which creates an impediment to a recovery at law, can be removed by a suit in equity and her dower obtained," and that "equity furnishes the most adequate and complete remedy, and dower is highly favored in that forum." The ground on which he declined to support the amended bill was that the plaintiff was not entitled to the specific relief prayed for.
It is true that the prayer of the bill, being apparently drawn upon the supposition that the plaintiff might be held bound by the mortgage, is chiefly directed towards securing a right to redeem. In that aspect of the case, she properly offered to redeem the whole property, by paying off the whole mortgage, because she could not, unless at the election of the mortgagee, redeem by paying less. Collins v. Riggs, 14 Wall. 491; McCabe v. Bellows, 7 Gray, 148. But the general object of the bill is to secure to the plaintiff the dower interest of which she has been defrauded, and the bill contains a prayer for general relief. This is sufficient to enable a court of equity to decree such relief as the facts stated in the bill justify. English v. Foxall, 2 Pet. 595; Tayloe v. Merchants' Ins. Co., 9 How. 390; Texas v. Hardenberg, 10 Wall. 68.
What has been said furnishes an answer also to the argument that the plaintiff's right, if any, is barred by the statute of limitations. The plaintiff is not suing for her dower as such, the right to which accrued in 1863, but for property *693 of which she has been defrauded, and in such a case the statute of limitations begins to run only from the discovery of the fraud. Moore v. Greene, 19 How. 69; Meader v. Norton, 11 Wall. 442; Cock v. Van Etten, 12 Minnesota, 522; Minnesota Gen. Stat. 1878, c. 66, § 6, cl. 6.
Decree reversed, and case remanded, with directions to overrule the demurrer to the amended bill, and to take such further proceedings as may be consistent with this opinion.


622 F.2d 584
Inmates, Richmond City Jailv.Winston
79-6639
UNITED STATES COURT OF APPEALS Fourth Circuit
5/21/80

1
E.D.Va.

AFFIRMED


[Cite as Hambuechen v. 221 Market N., Inc., 2017-Ohio-8998.]

                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

ANA M. HAMBUECHEN                                :             JUDGES:
                                                 :             Hon. John W. Wise, P.J.
        Complainant - Appellee                   :             Hon. Craig R. Baldwin, J.
                                                 :             Hon. Earle E. Wise, J.
-vs-                                             :
                                                 :
221 MARKET NORTH, INC.,                          :             Case No. 2016CA00216
  DBA NAPOLI’S ITALIAN EATERY                    :
                                                 :
        Respondent- Appellant                    :             OPINION

CHARACTER OF PROCEEDING:                                       Appeal from the Stark County Court
                                                               of Common Pleas, Case No. 2012-
                                                               CV-3644

JUDGMENT:                                                      Reversed and Remanded

DATE OF JUDGMENT:                                              December 11, 2017

APPEARANCES:

For Complainant-Appellee                                       For Respondent-Appellant
Ohio Civil Rights Commission
                                                               STANLEY R. RUBIN
WAYNE D. WILLIAMS                                              437 Market Avenue North
Principal Assistant Attorney General                           Canton, Ohio 44702
615 West Superior Avenue, 11th Fl.
Cleveland, Ohio 44113

For Complainant-Appellee

TODD W. EVANS
1301 Farrell St. SE
North Canton, Ohio 44720
Stark County, Case No. 2016CA00216                                                 2

Baldwin, J.

         {¶1}   Respondent-appellant 221 Market Avenue North, Inc. appeals from the

October 31, 2016 Judgment Entry and Order from the Stark County Court of Common

Pleas.

                           STATEMENT OF THE FACTS AND CASE

         {¶2}   On March 15, 2007, appellee Ana Hambuechen (“Hambuechen”) filed a

charge affidavit with appellee Ohio Civil Rights Commission (“Commission”) alleging that

her employment as a server by appellant, 221 Market North, Inc., d.b.a. Napoli's Italian

Eatery (“Napoli's”), had been unlawfully terminated because she became pregnant. The

Commission investigated the complaint and, on July 19, 2007, found probable cause

existed that an unlawful employment practice had occurred in violation of R.C.

4112.02(A).

         {¶3}   On September 13, 2007, the Commission filed a complaint and notice of

hearing, requesting a finding that appellant had violated R.C. 4112.02(A). Appellant filed

an answer on October 31, 2007. The matter proceeded to a trial before an administrative

law judge (“ALJ”) on November 19, 2008.

         {¶4}   The ALJ found that the employer had discriminated against Hambuechen

on the basis of sex and recommended that the Commission find that appellant had

violated the law by firing Hambuechen. The ALJ further recommended the following: the

Commission order appellant to cease and desist from all discriminatory practices in

violation of R.C. 4112; the Commission order appellant to make an offer of employment

to Hambuechen for the position of server; and the Commission order appellant to pay

Hambuechen back pay at the amount she would have earned had she been employed
Stark County, Case No. 2016CA00216                                                   3

as a server as of December 6, 2006 and until the offer of employment, less interim

earnings.

       {¶5}   Appellant filed objections to the ALJ's report and recommendations on April

9, 2012. The Commission adopted the ALJ's recommendation and, on November 15,

2012, issued a final order adopting the ALJ's report.

       {¶6}   On November 26, 2012, appellant filed a Petition for Judicial Review

pursuant to R.C. 4112.06 with the Stark County Court of Common Pleas, arguing that the

Commission's order was contrary to law, constituted an abuse of discretion, and was not

supported by reliable and probative evidence. The Commission filed a Motion to Dismiss

on December 28, 2012, contending that appellant had failed to initiate service on the

parties through the Clerk of Courts within thirty (30) days. The trial court granted the

Commission's Motion to Dismiss on February 19, 2013.

       {¶7}   Appellant then appealed the trial court's February 2013 Judgment Entry to

this Court. In Hambuechen v. 221 Market North, Inc., 5th Dist. Stark No. 2013CA00044,

2013-Ohio-3717, this Court reversed the decision of the trial court and found that the trial

court had erred in dismissing appellant's Petition for Judicial Review on the basis that

service of the petition was not obtained through the Clerk of Courts within thirty (30) days.

The Ohio Supreme Court affirmed the judgment in Hambuechen v. 221 Market North,

Inc., 143 Ohio St.3d 161, 2015-Ohio-756, 35 N.E.3d 502 , and remanded the case to the

Stark County Court of Common Pleas.

       {¶8}   When the case was returned to the trial court, the parties filed briefs. The

trial court issued a Judgment Entry on August 14, 2015. The trial court found the ALJ's
Stark County, Case No. 2016CA00216                                                  4

decision was supported by reliable, probative, and substantial evidence, and sustained

and enforced the determination of the Commission.

       {¶9}   Appellant appealed. Pursuant to an Opinion filed on May 23, 2016 in

Hambuechen v. 221 Market North, Inc., 5th Dist. Stark No. 2015CA00161, 2016 -Ohio-

3156, this Court affirmed the judgment of the trial court.

       {¶10} Thereafter, on September 12, 2016, the Commission and Hambuechen

filed a “Joint Motion for Show Cause Order and Request to Place Any Sale Proceeds

from Business into Escrow.” The motion alleged that appellant had failed to make an offer

of employment to Hambuechen or otherwise provide her back pay relief as set forth in the

November 15, 2012 Commission’s order. The motion further alleged that appellant had

put its business up for sale and asked that the show cause order contain a provision

requiring all proceeds from the sale to remain in escrow. A copy of the motion was served

on appellant’s counsel, but not appellant, by regular mail. A show cause order was filed

on September 15, 2016 ordering appellant to appear in court on October 7, 2016 to show

cause why appellant should not be held in contempt and also ordering that if appellant’s

business was sold, all proceeds would be held in escrow until further order of the court.

Appellant’s counsel, but not appellant, was served with a copy of the show cause order

by certified mail on September 19, 2016.

       {¶11} A show cause hearing was held on October 7, 2016. Neither appellant nor

its counsel appeared for the hearing. At the hearing, the trial court indicated that it had

contacted the office of appellant’s counsel and was informed that he was not in the office

and had canceled the hearing on his calendar. The trial court further indicated that it had

been unable to reach appellant’s counsel to determine why he did not appear.
Stark County, Case No. 2016CA00216                                                  5

      {¶12} Pursuant to a Judgment Entry and Order filed on October 31, 2016, the trial

court ordered appellant to offer Hambuechen reinstatement to her position as restaurant

server by November 18, 2016. The trial court further stated that once Hambuechen was

offered reinstatement, appellant had ten days within which to submit to the Commission

a certified check payable to Hambuechen in the amount of $206,648.00. Finally, the trial

court ordered that if appellant did not timely submit the check, judgment would be entered

against appellant in the amount of $206,648.00.

      {¶13} Appellant now appeals from the trial court’s October 31, 2016 Judgment

Entry and Order, raising the following assignment of error on appeal:

      {¶14} THE COURT ERRED IN HOLDING A CONTEMPT HEARING WHEN

ONLY THE ALLEGED CONTEMNOR’S ATTORNEY, AND NOT THE ALLEGED

CONTEMNOR, RECEIVED NOTICE OF THE MOTION TO SHOW CAUSE AND THE

ORDER SETTING THE HEARING DATE.

                                                I

      {¶15} Appellant, in its sole assignment of error, argues that the trial court erred in

finding appellant in contempt since appellant did not receive notice of the Motion to Show

Cause and the order setting the October 7, 2016 hearing date.

      {¶16} As is stated above, on September 12, 2016, the Commission and

Hambuechen filed a “Joint Motion to Show Cause Order and Request to Place Any Sale

Proceeds from Business into Escrow.” A copy of the motion was served on appellant’s

counsel, but never on appellant, the alleged contemnor.

      {¶17} Contempt has been defined as the disregard for judicial authority. State v.

Flinn, 7 Ohio App.3d 294, 455 N.E.2d 691 (9th Dist. 1982). “It is conduct which brings the
Stark County, Case No. 2016CA00216                                                 6

administration of justice into disrespect, or which tends to embarrass, impede or obstruct

a court in the performance of its functions.” Windham Bank v. Tomaszczyk , 27 Ohio St.2d

55, 271 N.E.2d 815 (1971), paragraph one of the syllabus.

      {¶18} Contempt may be classified as direct or indirect. In re: Purola, 73 Ohio

App.3d 306, 310, 596 N.E.2d 1140 (3rd Dist.1991). Direct contempt occurs in the

presence of the court, while indirect contempt occurs outside its immediate presence. Id.

“An indirect contempt is one committed outside the presence of the court but which also

tends to obstruct the due and orderly administration of justice.” In re Lands, 146 Ohio St.

589, 595, 67 N.E. 433 (1946).In addition, “[c]ontempt is further classified as civil or

criminal depending on the character and purpose of the contempt sanctions.” Purola at

311. “Civil contempt is designed to benefit the complainant and is remedial in nature. * *

* Thus, an individual charged with civil contempt must be permitted to appear before the

court and purge himself of the contempt by demonstrating compliance with the court's

order.” State v. Miller, 5th Dist. Holmes App. No. 02 CA 16, 2003–Ohio–948, ¶ 28, citing

Purola, supra. Due process must be observed in both civil and criminal contempt

proceedings. See, e.g., In re Oliver, 333 U.S. 257, 274–275, 68 S.Ct. 499, 92 L.Ed. 682

(1948).

      {¶19} We find this contempt to be indirect and civil in nature. The issue before us

is whether service of the civil contempt motion was sufficient when made on appellant's

attorney, rather than on appellant personally. The civil rules regarding notice apply when

the contempt is civil in nature. Bierce v. Howell, 5th Dist. Delaware No. 06 CAF 05 0032,

2007–Ohio–3050.
Stark County, Case No. 2016CA00216                                                  7

       {¶20} In Ewing v. Ewing, 5th Dist. Licking No. 06-CA-148, 2007 -Ohio- 7108, the

plaintiff filed a contempt action against the defendant on October 31, 2005. The matter

was to be considered during the course of the contested divorce. Prior to the hearing,

counsel for the defendant proffered a motion to dismiss such motion based on the fact

there had not been personal service of the contempt motion on the defendant. The trial

court sustained the motion to dismiss.

       {¶21} The plaintiff then appealed. This Court, in Ewing, in holding that the trial

court did not err in granting the motion to dismiss, held as follows in paragraph 75:

              We have previously analyzed a similar issue in Bierce v. Howell, 5th

       Dist. No. 06 CAF 05 0032, 2007-Ohio-3050, in which we found that initial

       service of the motion for contempt in an indirect contempt situation must be

       served upon the party and not the party's attorney. Id. at ¶ 25; see also

       Hansen v. Hansen (1999), 132 Ohio App.3d 795, 726 N.E.2d 557; James

       v. James (Feb. 12, 1996), Butler App. Nos. CA95-08-147 and CA95-09-155,

       unreported, 1996 WL 56014 and Thompson v. Houser (June 25, 1991),

       Greene App. No 90-CA-53, unreported, 1991 WL 116663; Cowgill v.

       Cowgill, Darke App. No. 02CA1587, 2003-Ohio-610. After initial service is

       complete, notices may then be sent to counsel. Id. Based on our holding in

       Bierce, we do not find it was error to grant Appellant's motion to dismiss

       Appellee's contempt motion.

       {¶22} In the Hansen case, cited above, while the court found that in most cases

an attorney is an agent for his client for purposes of service, it further found that

“[c]onsidering the unique nature of contempt proceedings-as well as the fact that the
Stark County, Case No. 2016CA00216                                                 8

alleged contemnor is the person who faces punishment, not the attorney[,]” the service

on Ms. Hansen's attorney was not sufficient. Id. at 799-800. The court stated that it

agreed with other cases that had held there generally must be an attempt to serve such

motions personally on the alleged contemnor. The court, in Hansen further stated, in part,

as follows in holding that Hansen’s due process rights were violated:

              Here, direct service on Ms. Hansen was never even attempted, much

       less made. There is no evidence that Ms. Hansen even received notice of

       the contempt motion from her attorney. Thus, we need not decide whether,

       absent direct service, actual notice would have sufficed. In fact, after the

       attorney was served with the contempt motion, the attorney filed a motion

       to withdraw, specifically stating that she had been unable to contact Ms.

       Hansen. Id. at 800.

       {¶23} In the case sub judice, there is no evidence that appellee ever attempted to

serve appellant with the Motion to Show Cause or that appellant had actual notice of the

motion.   We find, based on the foregoing, that initial service of the contempt motion

should have been made on appellant, the alleged contemnor, but was not, and that the

trial court erred in finding appellant in contempt.

       {¶24} Appellant’s sole assignment of error is, therefore, sustained.
Stark County, Case No. 2016CA00216                                                 9

      {¶25} Accordingly, the judgment of the Stark County Court of Common Pleas is

reversed and this matter is remanded to the trial court for further proceedings.

By: Baldwin, J.

John Wise, P.J. and

Earle Wise, J. concur.