               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-517

                                Filed: 19 March 2019

Wake County, No. 15 CRS 221297

STATE OF NORTH CAROLINA

              v.

JOSE ISRAEL RIVERA

      Appeal by Defendant from judgment entered 18 August 2017 by Judge Paul C.

Ridgeway in Superior Court, Wake County.         Heard in the Court of Appeals 14

January 2017.

      Attorney General Joshua H. Stein, by Assistant Attorney General Tracy Nayer,
      for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Aaron
      Thomas Johnson, for Defendant.

      McGEE, Chief Judge.

      Jose Israel Rivera (“Defendant”) appeals from his 18 August 2017 conviction

for taking indecent liberties with a child. For the reasons stated below, we dismiss

his appeal.

                           I. Factual Basis and Procedure

      In the early fall of 2015, Defendant was living in Raleigh with his wife, his

wife’s parents, and his minor children.        Defendant’s nine-year-old daughter

(“daughter”) was a close friend of a ten-year-old girl (“G.”) who lived nearby. G. was
                                   STATE V. RIVERA

                                   Opinion of the Court

a regular visitor at Defendant’s house, and also had a close relationship with

Defendant. On 22 September 2015, Defendant’s birthday, he came home from work

between 4:30 p.m. and 5:00 p.m. Defendant celebrated his birthday at home with his

family and G. by having dinner and watching a movie together. During the movie,

Defendant’s daughter and G. sat on the arms of an oversized armchair while

Defendant sat in the seat of the chair—a blanket covered their laps. According to G.,

while they were watching the movie, Defendant moved his left hand under the

blanket to her genital region, and touched her genitals both over and under her

underwear. The touching continued for five to ten minutes, until Defendant’s wife

announced that Defendant’s birthday cake was ready to eat and everyone went into

the kitchen to eat cake. G. went home after eating the cake, but did not report the

alleged touching to anyone that evening.

      Defendant’s daughter went to G.’s house the next morning, 23 September 2015,

and G. told her what had happened the night before. G. testified that Defendant’s

daughter told G. “to tell [G.’s] parents about what happened[,]” so they both went to

G.’s parents’ bedroom to report the alleged abuse. G. first told her father, and he then

told her mother. G.’s parents immediately walked over to Defendant’s house, where

they encountered Defendant’s wife and told her what G. had told them. G.’s parents

called the police, and officers were dispatched to investigate the accusations.

                                          -2-
                                   STATE V. RIVERA

                                  Opinion of the Court

Detective Kevin Hubard (“Detective Hubard”) of the Raleigh Police Department’s

Juvenile Unit interviewed G. at the police station later that day.

      After interviewing G., Detective Hubard and two additional officers went to

Defendant’s house, between 6:00 p.m. and 7:00 p.m. on 23 September 2015, to

question Defendant about the allegations.          After Detective Hubard talked to

Defendant, and explained the accusations, Defendant and his wife agreed to drive to

the police station in order to be interviewed. Once they arrived at the police station,

Detective Hubard interviewed Defendant in one room, while another detective talked

with Defendant’s wife in another room. Detective Hubard again informed Defendant

that the interview was voluntary, and Defendant again agreed to be interviewed. The

interview, which was recorded on video, began at approximately 8:00 p.m. on 23

September 2015, and lasted “at least an hour.”

      Approximately forty minutes into the interview, Defendant began to indicate

that he “guess[ed] it [was] possible” that he had improperly touched G. the night

before. Defendant stated: “I don’t remember, I guess I must have because she says,

it must have happened,” “she’s too close to me,” “I want to move on from this[.]”

However, Defendant vacillated between indicating that he had, or possibly could

have, sexually assaulted G.; stating that he did not remember doing anything; and

stating that he “would never” do something like that. At approximately 8:39 p.m.,

Detective Hubard suggested Defendant write an “apology” to G.’s parents, and

                                         -3-
                                  STATE V. RIVERA

                                  Opinion of the Court

Defendant agreed to do so. Detective Hubard gave Defendant paper and a pen, and

left the interview room around 8:42 p.m. to allow Defendant to write the “apology.”

Defendant wrote a short statement in which he indicated that he was sorry for having

hurt G. However, while he was alone in the interview room writing the “apology,” he

also made conflicting verbal statements concerning his culpability. Detective Hubard

returned to the interview room and read the “apology” aloud.        Defendant still

continued to give conflicting statements concerning whether he did, or could have,

molested G. Defendant asked to speak with his wife, and she was brought into the

interview room and left alone with Defendant. Defendant’s vacillation continued in

his conversation with his wife.     Defendant’s wife left the interview room, and

Defendant was then arrested at approximately 9:26 p.m. on 23 September 2015.

      Defendant was indicted for sexual offense with a child and taking indecent

liberties with a child.   Defendant’s trial began on 14 August 2017, and pretrial

motions were heard that morning before jury selection. At this pretrial motions

hearing, Defendant’s attorney informed the trial court that he wanted to move to

suppress the inculpatory statements Defendant had made in his interview with

Detective Hubard. The State objected, informing the trial court that Defendant had

not filed a motion to suppress and that it had received no notice that Defendant was

intending to move to suppress this evidence. Based upon Defendant’s violation of the

statutes governing motions to suppress, the trial court ruled that it would not

                                         -4-
                                   STATE V. RIVERA

                                   Opinion of the Court

consider Defendant’s purported pretrial “motion to suppress,” and the proceedings

continued to trial.

      During the direct questioning of Detective Hubard, the State sought to

introduce the video recording of Defendant’s interview with Detective Hubard at the

police station. Defendant’s attorney informed the trial court that he would like to be

heard, and the jury was sent out of the courtroom. Defendant asked the trial court’s

             permission to voir dire [Detective Hubard] on the question
             of the last thing he said on direct examination about his
             decision to arrest, and this relates to my earlier motion to
             suppress. I believe in the context of this interview,
             [Detective Hubard] had made a decision to arrest and it
             occurred sometime before his final decision to put my client
             in custody.

Defendant’s attorney stated: “I would submit to the Court that [Detective Hubard]

had made a decision to arrest [Defendant] at about 8:40 -- 8:40 p.m., where my client

had decided to make an apology.” The trial court stated that, in its opinion, it did not

make “any difference what subjective decisions [Detective Hubard] made about

arresting or not arresting” until those decisions were expressed to Defendant; the

trial court then overruled Defendant’s objection. Defendant’s attorney responded:

“Fair enough,” and the trial proceeded.         The video of Defendant’s inculpatory

statements was admitted into evidence and published to the jury. When asked if he

had any further objections, Defendant’s attorney stated that he did not, and the trial

continued. Defendant was found not guilty of a sex offense with a child, but was

                                          -5-
                                   STATE V. RIVERA

                                   Opinion of the Court

convicted on 18 August 2017 of taking indecent liberties with a child. Defendant

appeals.

                                      II. Analysis

      Defendant argues that the “trial court erred, and committed plain error, by

admitting [Defendant’s] statements [because Defendant] did not receive Miranda

warnings[,]” and because Defendant’s “statements were involuntary.” Defendant has

waived any right of appellate review of these arguments, and we dismiss.

                             A. Waiver of Right of Appeal

      Defendant’s arguments are based upon alleged violations of the Fifth and

Fourteenth Amendments of the Constitution of the United States.              Article 53,

Chapter 15A of the North Carolina General Statutes, N.C. Gen. Stat. § 15A-971, et

seq. (“Article 53”), “governs the suppression of unlawfully obtained evidence in our

trial courts.” State v. Miller, __ N.C. __, __, 814 S.E.2d 81, 83 (2018). As our Supreme

Court said:

              N.C.G.S. § 15A-974(a)(1) states that, “[u]pon timely
              motion, evidence must be suppressed if . . . [i]ts exclusion
              is required by the Constitution of the United States[.]” And
              N.C.G.S. § 15A-979(d) specifies that “[a] motion to suppress
              evidence made pursuant to this Article is the exclusive
              method of challenging the admissibility of evidence” on
              constitutional grounds. (Emphasis added.) A defendant
              generally “may move to suppress evidence only prior to
              trial,” N.C.G.S. § 15A-975(a) (2017), subject to a few,
              narrow exceptions that permit a defendant to move during
              trial, see id. § 15A-975(b), (c) (2017).

                                          -6-
                                    STATE V. RIVERA

                                   Opinion of the Court

             In other words, the governing statutory framework
             requires a defendant to move to suppress at some point
             during the proceedings of his criminal trial. Whether he
             moves to suppress before trial or instead moves to suppress
             during trial because an exception to the pretrial motion
             requirement applies, a defendant cannot move to suppress
             for the first time after trial. . . . . When a defendant files a
             motion to suppress before or at trial in a manner that is
             consistent with N.C.G.S. § 15A-975, that motion gives rise
             to a suppression hearing and hence to an evidentiary record
             pertaining to that defendant’s suppression arguments. But
             when a defendant, such as defendant here, does not file a
             motion to suppress at the trial court stage, the evidentiary
             record pertaining to his suppression arguments has not
             been fully developed, and may not have been developed at
             all.

Id. at __, 814 S.E.2d at 83 (penultimate emphasis added). This Court recognized in

an opinion affirmed per curiam by our Supreme Court:

             A defendant who seeks to suppress evidence upon a ground
             specified in N.C. Gen. Stat. § 15A–974 must comply with
             the procedural requirements outlined in Article 53,
             Chapter 15A of the North Carolina General Statutes. State
             v. Satterfield, 300 N.C. 621, 624, 268 S.E.2d 510, 513
             (1980); State v. Holloway, 311 N.C. 573, 576, 319 S.E.2d
             261, 264 (1984), habeas corpus granted, Holloway v.
             Woodard, 655 F. Supp. 1245 (1987). . . . . The burden is
             upon the defendant to show that he has complied with the
             procedural requirements of Article 53. Satterfield, 300
             N.C. at 624–25, 268 S.E.2d at 513–14.

State v. Creason, 123 N.C. App. 495, 499, 473 S.E.2d 771, 773 (1996), affirmed, per

curiam, 346 N.C. 165, 484 S.E.2d 525 (1997). In Holloway, the defendant’s motion to

suppress failed to include a supporting affidavit as required by N.C. Gen. Stat. § 15A–

977(a), but the State did not object and the trial court conducted a suppression

                                          -7-
                                   STATE V. RIVERA

                                  Opinion of the Court

hearing on the defendant’s Fourth Amendment argument, which it denied. State v.

Holloway, 311 N.C. 573, 576-77, 319 S.E.2d 261, 263-64 (1984). This Court, with one

judge dissenting, agreed with the defendant’s argument and remanded for the taking

of additional evidence. Id. at 576, 319 S.E.2d at 263. On appeal by the State, our

Supreme Court held that failure to comply with the requirements of Article 53

constituted a waiver of the defendant’s right to challenge the denial of his motion to

suppress—even though that issue had already been litigated in the trial court:

             The defendant contends that because the State did not
             object to the sufficiency of the motion to suppress at trial,
             or to the evidentiary hearing held on the motion, the State
             cannot now raise the issue of the motion’s deficiency for the
             first time before this Court. We find no merit in this
             contention. We have held that defendants by failing to
             comply with statutory requirements set forth in N.C.G.S.
             15A–977 waive their rights to contest on appeal the
             admission of evidence on constitutional or statutory
             grounds. State v. Maccia, 311 N.C. 222, 316 S.E.2d 241
             (1984); State v. Satterfield, 300 N.C. 621, 268 S.E.2d 510
             (1980). The State’s failure to object to the form of the
             motion affects neither that waiver nor the authority
             statutorily vested in the trial court to deny summarily the
             motion to suppress when the defendant fails to comply with
             the procedural requirements of Article 53. The trial court
             could properly have denied the defendant’s motion to
             suppress based on the defendant’s procedural failures
             alone, and we therefore reverse the decision of the Court of
             Appeals.

Holloway, 311 N.C. at 578, 319 S.E.2d at 264.

      In the present case, Defendant did not file a motion to suppress—or give proper

notice and file other required documents—as directed by N.C. Gen. Stat. §§ 15A-972,

                                         -8-
                                        STATE V. RIVERA

                                        Opinion of the Court

15A-974, 15A-975, 15A-976, 15A-977, and 15A-979(d) (2017) (“A motion to suppress

evidence made pursuant to this Article is the exclusive method of challenging the

admissibility of evidence upon the grounds specified in G.S. 15A-974.”). The State,

based upon violations of N.C.G.S. § 15A-977,1 objected, and the trial court ruled:

“Okay. I’m not going to entertain a motion to suppress at this stage.” No hearing

was conducted, but the trial court opined, based on the forecast of evidence, that

Detective Hubard’s questioning of Defendant did not appear to constitute custodial

interrogation for Miranda purposes. The trial court again stated that it would not

consider Defendant’s motion to suppress because “the procedural bar at this stage

[Article 53] would bar the consideration of a motion to suppress on this matter. And

so I will not entertain that.” The trial court’s ruling was clearly correct, and we affirm

it. Creason, 123 N.C. App. at 499, 473 S.E.2d at 773.

       During direct questioning of Detective Hubard at trial, the State sought to

introduce the video recording of Defendant’s interview with Detective Hubard at the

police station. Defendant informed the trial court that he would like to be heard, and

the jury was sent out of the courtroom. Defendant’s attorney asked the trial court’s

“permission to voir dire [Detective Hubard] on the question of the last thing

[Detective Hubard] said on direct examination about his decision to arrest, and this

       1  “A motion to suppress evidence in superior court made before trial must be in writing and a
copy of the motion must be served upon the State. The motion must state the grounds upon which it
is made. The motion must be accompanied by an affidavit containing facts supporting the motion.”

                                                -9-
                                        STATE V. RIVERA

                                       Opinion of the Court

relates to my earlier motion to suppress.[2]” Defendant’s attorney stated: “I believe

in the context of this interview, [Detective Hubard] had made a decision to arrest and

it occurred sometime before his final decision to put my client in custody.”

Defendant’s attorney stated: “I would submit to the Court that [Detective Hubard]

had made a decision to arrest [Defendant] at about 8:40 -- 8:40 p.m., where my client

had decided to make an apology.” Defendant’s argument was that once Detective

Hubard decided that he was going to arrest Defendant—when Defendant agreed to

write out an “apology”—the interview “segue[d] from a non-custodial interview to a

custodial interview” because “during the course of that interview the police officers

did make a decision to arrest. And at that point, . . . the obligation of [Detective

Hubard] to put [Defendant] on notice with Miranda warning was” triggered.

Defendant’s sole authority for his argument was Dickerson v. United States, 530 U.S.

428, 147 L. Ed. 2d 405 (2000). The trial court did not find Defendant’s legal authority

persuasive, stating:

               I don’t see the factual parallel. [Dickerson] sounds like a
               custodial interrogation where no Miranda was given. And
               the Fourth Circuit said since it was a voluntary statement
               that Miranda was not required. And the [Supreme Court]
               in 2000 is saying it doesn’t matter whether its voluntary or
               not, if it’s a custodial interrogation, Miranda warning[s
               are] required. I’m not sure I’m seeing the principle of law
               that I asked you about, mainly whether in the course of a

       2  The State had asked Detective Hubard whether he had at any point during the interview
told Defendant “that he was not free to leave.” Detective Hubard responded: “The only time anything
like that would have been said was when we told him he was under arrest. At that point I was no
longer interviewing him.”

                                              - 10 -
                                         STATE V. RIVERA

                                        Opinion of the Court

               non-custodial interview if someone makes an inculpatory
               statement, whether at that point in the interview law
               enforcement is required to provide a Miranda Warning
               because the -- can you point me to the[] facts that support
               that position?

Defendant’s attorney did not voir dire Detective Hubard concerning his questioning

of Defendant at the police station, nor did Defendant’s attorney request the trial court

to view the video of Defendant’s questioning prior to ruling on his objection to the

introduction of the evidence of Defendant’s inculpatory statements.3 State v. Roper,

328 N.C. 337, 361, 402 S.E.2d 600, 614 (1991) (when the defendant desires to make a

motion to suppress at trial, he “must . . . specify that he is making a motion to

suppress and request a voir dire.”). The trial court considered Defendant’s argument

to be an objection to the admission of the video, not a motion to suppress, and it

overruled Defendant’s objection. The trial court expressed its ruling as follows:

               I’m going to overrule the objection that at a certain point of
               this non-custodial interview, based on statements made by
               [] Defendant, it made any difference what subjective
               decisions [Detective Hubard] made about arresting or not
               arresting [] Defendant. It still has the character of a non-
               custodial interview, not requiring Miranda Warnings, so
               therefore I would overrule the objection on that basis.
               (Emphasis added).

Defendant’s attorney responded: “Fair enough[,]” and the trial proceeded.

       3 Although Defendant’s attorney initially stated that he wanted to voir dire Detective Hubard
concerning when Detective Hubard had decided to arrest Defendant, he did not voir dire Detective
Hubard concerning this or any other subject; did not make any follow-up request to voir dire Detective
Hubard prior to the ruling of the trial court; nor request voir dire to preserve Detective Hubard’s
testimony for appellate review.

                                               - 11 -
                                   STATE V. RIVERA

                                   Opinion of the Court

      The objection made by Defendant’s attorney did not constitute a motion to

suppress pursuant to Article 53, nor could it:

             A defendant may move to suppress evidence at trial only if
             he demonstrates that he did not have a reasonable
             opportunity to make the motion before trial; or that the
             State did not give him sufficient advance notice (twenty
             working days) of its intention to use certain types of
             evidence; or that additional facts have been discovered
             after a pretrial determination and denial of the motion
             which could not have been discovered with reasonable
             diligence before determination of the motion. G.S. 15A-975.

State v. Satterfield, 300 N.C. 621, 625, 268 S.E.2d 510, 514 (1980); see also State v.

Maccia, 311 N.C. 222, 227–28, 316 S.E.2d 241, 244 (1984) (citations omitted) (“The

defendant has the burden of showing that he has complied with the procedural

requirements of Article 53. In Superior Court a ‘defendant may move to suppress

evidence only prior to trial’ unless he falls within certain exceptions. G.S. 15A–975

(emphasis added).”). Because none of the exceptions set forth in N.C.G.S. § 15A–975

apply in the present case, Defendant could not timely make a motion to suppress

during the trial. Id.; State v. Stowes, 220 N.C. App. 330, 333, 727 S.E.2d 351, 354

(2012) (citations omitted) (“In the present case, Defendant objected at trial to the

introduction of Exhibits 4 and 5 by the State and the trial court itself elected to treat

Defendant’s objection as a motion to suppress.            The trial court then denied

Defendant’s motion to suppress and overruled the objection.              We hold that

Defendant’s ‘motion to suppress’ was not timely, and the trial court did not err in

                                          - 12 -
                                   STATE V. RIVERA

                                  Opinion of the Court

denying it.”); State v. Harris, 71 N.C. App. 141, 143–44, 321 S.E.2d 480, 482–83 (1984)

(trial court properly denied the defendant’s attempted motion to suppress at trial

without conducting a voir dire hearing where none of the N.C.G.S. § 15A–975

exceptions applied). Because Defendant has failed in his burden of establishing that

his purported “motion to suppress” at trial was made in compliance with the

requirements of N.C.G.S. § 15A–975, Defendant waived any right to appellate review,

and the trial court did not err in denying it on that basis alone. Holloway, 311 N.C.

at 578, 319 S.E.2d at 264.

      “The defendant has the burden of establishing that the motion to suppress is

both timely and in proper form.” Roper, 328 N.C. at 360, 402 S.E.2d at 613-14

(citations omitted). Defendant has not met this burden. We hold that Defendant

waived appellate review of both his purported “motions to suppress,” and we are

required to dismiss these arguments pursuant to the holdings in Creason, 346 N.C.

at 165, 484 S.E.2d at 525, affirming, per curiam, Creason, 123 N.C. App. at 499, 473

S.E.2d at 773, and Holloway, 311 N.C. at 577–78, 319 S.E.2d at 264. In addition, our

Supreme Court recently held that a defendant waives even plain error review if his

purported “motion to suppress” is not made in accordance with the requirements of

Article 53. Miller, __ N.C. at __, 814 S.E.2d at 83–86.

                         B. Ineffective Assistance of Counsel

                                         - 13 -
                                   STATE V. RIVERA

                                   Opinion of the Court

      Defendant further argues that his attorney was constitutionally ineffective

because the attorney failed to properly move to suppress Defendant’s inculpatory

statements. The test to determine if a defendant’s attorney’s representation has

violated the defendant’s Sixth Amendment rights was set forth by the United States

Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693

(1984) (the “Strickland test”). Pursuant to the Strickland test, in order to prevail on

a claim of ineffective assistance of counsel (“IAC”), a defendant must prove two things:

             “First, the defendant must show that counsel’s
             performance was deficient. This requires showing that
             counsel made errors so serious that counsel was not
             functioning as the ‘counsel’ guaranteed the defendant by
             the Sixth Amendment. Second, the defendant must show
             that the deficient performance prejudiced the defense.
             This requires showing that counsel’s errors were so serious
             as to deprive the defendant of a fair trial, a trial whose
             result is reliable. (Emphasis added).”

State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (citation omitted).

      However, it is rare that this Court will be in a position to decide a defendant’s

IAC claim on direct appeal: “Generally, a claim of ineffective assistance of counsel

should be considered through a motion for appropriate relief before the trial court in

post-conviction proceedings and not on direct appeal.” State v. Allen, __ N.C. App. __,

__, 821 S.E.2d 860, 861 (2018) (citation omitted). This Court will only consider IAC

claims brought on direct appeal “‘when the cold record reveals that no further

investigation is required, i.e., claims that may be developed and argued without such

                                          - 14 -
                                    STATE V. RIVERA

                                   Opinion of the Court

ancillary procedures as the appointment of investigators or an evidentiary hearing.’”

State v. Thompson, 359 N.C. 77, 122–23, 604 S.E.2d 850, 881 (2004) (citation omitted).

“Thus, when this Court reviews ineffective assistance of counsel claims on direct

appeal and determines that they have been brought prematurely, we dismiss those

claims without prejudice, allowing defendant to bring them pursuant to a subsequent

motion for appropriate relief in the trial court.” Id. at 123, 604 S.E.2d at 881 (citation

omitted).

      We agree with Defendant that the record before us demonstrates that his

“counsel’s performance was deficient[,]” thus satisfying the first prong of the

Strickland test. Braswell, 312 N.C. at 562, 324 S.E.2d at 248 (citation omitted).

Defendant’s counsel failed to file a pretrial motion to suppress as was required by

Article 53. This failure prevented Defendant from being afforded the opportunity to

present his evidence and arguments in a voir dire suppression hearing and, therefore,

no ruling was obtained nor order entered. This failure also prevented Defendant from

the ability to obtain appellate review of the trial court’s ruling and order in the event

his motion to suppress had been denied. The fact that Defendant’s counsel attempted

to make an oral motion to suppress at the pretrial motions hearing demonstrates that

this failure was not intentional nor part of any trial strategy. Defendant’s “counsel

was not functioning as the ‘counsel’ guaranteed [D]efendant by the Sixth

Amendment.” Id. (citation omitted).

                                          - 15 -
                                    STATE V. RIVERA

                                   Opinion of the Court

      However, the record before us is insufficient for review of the prejudice prong

of the Strickland test on direct appeal. In order to meet the requirements of proving

prejudice, Defendant must show “‘that [his] counsel’s errors were so serious as to

deprive [him] of a fair trial, a trial whose result is reliable.’” Id. (citation omitted)

(emphasis removed). “A defendant must demonstrate a reasonable probability that

the trial result would have been different absent counsel’s error.” State v. Warren,

244 N.C. App. 134, 145, 780 S.E.2d 835, 842 (2015) (citation omitted). Defendant

argues: “Had [Defendant’s attorney] properly preserved these issues, there is a

reasonable probability that either (1) the trial court would have suppressed the

statements and at least one juror would have voted to acquit, or (2) this Court would

reverse the denial of the suppression motion and vacate the conviction[.]” In order

for this Court to hold that Defendant has met his burden of showing prejudice

pursuant to either of these arguments, we would have to hold, at least implicitly, that

there was no legitimate possibility that additional relevant evidence would have been

elicited had a suppression hearing been conducted in this case. We cannot know what

evidence might have been produced in a hearing that never occurred and, therefore,

direct review of an IAC claim on facts similar to those before us will rarely be

appropriate:

               “In order to determine whether a defendant is in a position
               to adequately raise an ineffective assistance of counsel
               claim, we stress this Court is limited to reviewing this
               [argument] only on the record before us, without the

                                          - 16 -
                                   STATE V. RIVERA

                                  Opinion of the Court

             benefit of information provided by [the State, or by]
             defendant to trial counsel, as well as defendant’s thoughts,
             concerns, and demeanor, that could be provided in a full
             evidentiary hearing on a motion for appropriate relief.”

State v. Perry, __ N.C. App. __, __, 802 S.E.2d 566, 573, disc. review denied, 370 N.C.

377, 807 S.E.2d 568 (2017) (citation omitted).

      Without a suppression hearing, the State is not given the opportunity to tailor

its evidence and arguments in response to the arguments set forth in a defendant’s

motion to suppress. Further, the defendant’s counsel cannot fully present his legal

arguments, introduce evidence in support of his arguments, nor directly counter the

State’s evidence through cross-examination or the admission of contradictory

evidence.

      In the present case, Defendant now asks this Court to make a determination

on whether there was “a reasonable probability that the trial result would have been

different absent counsel’s error,” Warren, 244 N.C. App. at 145, 780 S.E.2d at 842

(citation omitted), based not on the evidence and arguments that Defendant’s counsel

and the State would have presented at a suppression hearing, but on the arguments

Defendant’s appellate counsel has decided to present to this Court based upon the

evidence presented at trial, which was not tailored toward the issues Defendant

would have raised during a pretrial suppression hearing.

      In Miller, our Supreme Court held that a request for plain error review is not

an appropriate method for making a constitutional challenge to the admission of

                                         - 17 -
                                        STATE V. RIVERA

                                       Opinion of the Court

evidence when there has been no suppression hearing due to the defendant’s counsel’s

failure to follow the requirements of Article 53. Miller, __ N.C. App. at __, 814 S.E.2d

at 85. In reaching its holding, the Court thoroughly discussed the dangers inherent

in conducting a prejudice review on appeal when the issue has not been litigated in a

suppression hearing at trial.         Miller, __ N.C. App. at __, 814 S.E.2d at 83-85.

Although Miller involves plain error review, the defendant’s burden to demonstrate

prejudice on plain error review is very similar to the defendant’s burden to

demonstrate prejudice on direct appeal of an IAC claim, and we find the Court’s

reasoning applicable to Defendant’s IAC argument in the present case.

       The procedural facts in Miller are analogous to the procedural facts in the

present case—the defendant in Miller failed to file any pretrial motion to suppress in

accordance with Article 53, and failed to move to suppress during trial.4 Instead, the

defendant raised an argument that the relevant evidence had been obtained in

violation of the Fourth Amendment for the first time on appeal: “[The d]efendant

argued to the Court of Appeals that the trial court ‘plainly erred’ by ‘admitting the

cocaine and testimony about the cocaine,’ and that the seizure of the cocaine resulted

from various Fourth Amendment violations.” Miller, __ N.C. App. at __, 814 S.E.2d

at 82. In overruling this Court’s decision to conduct plain error review—and thereby

       4 There is no indication that the defendant in Miller could have made a motion to suppress
during trial because, as in the present case, there was no evidence that any of the requirements of
N.C.G.S. § 15A-975 allowing a motion to suppress during trial applied.

                                              - 18 -
                                         STATE V. RIVERA

                                         Opinion of the Court

overruling the decision to grant the defendant a new trial—our Supreme Court

discussed why a defendant’s failure to comply with Article 53—when this failure

prevents a proper motion to suppress hearing from being conducted by the trial

court—significantly impairs the ability to conduct meaningful or fair appellate

review:

               Whether [a defendant] moves to suppress before trial or
               instead moves to suppress during trial because an
               exception to the pretrial motion requirement applies, a
               defendant cannot[, pursuant to Article 53,] move to
               suppress for the first time after trial.[5] By raising his
               Fourth Amendment arguments for the first time on appeal,
               however, that is effectively what defendant has done here.
               When a defendant files a motion to suppress before or at
               trial in a manner that is consistent with N.C.G.S. § 15A-
               975, that motion gives rise to a suppression hearing and
               hence to an evidentiary record pertaining to that
               defendant’s suppression arguments.            But when a
               defendant, such as defendant here, does not file a motion
               to suppress at the trial court stage, the evidentiary record
               pertaining to his suppression arguments has not been fully
               developed, and may not have been developed at all.

               To find plain error, an appellate court must determine that
               an error occurred at trial. The defendant, additionally,
               must demonstrate that the error was “fundamental”—
               meaning that the error “had a probable impact on the jury’s
               finding that the defendant was guilty” and “seriously
               affect[ed] the fairness, integrity, or public reputation of
               judicial proceedings.” But here, considering the incomplete
               record and the nature of defendant’s claims, our appellate
               courts cannot conduct appellate review to determine
               whether the Fourth Amendment required suppression.

       5 The defendant in Miller did not make any motion to suppress after his trial; the Court is
simply stating that the defendant’s request for plain error review on appeal is akin to such a request,
which Article 53 does not allow.

                                                - 19 -
                                  STATE V. RIVERA

                                 Opinion of the Court

            [The d]efendant asked the Court of Appeals . . . to review
            whether defendant voluntarily consented to a search that
            resulted in the discovery of incriminating evidence. Fact-
            intensive Fourth Amendment claims like these require an
            evidentiary record developed at a suppression hearing.
            Without a fully developed record, an appellate court simply
            lacks the information necessary to assess the merits of a
            defendant’s plain error arguments.

            When a defendant does not move to suppress, moreover,
            the State does not get the opportunity to develop a record
            pertaining to the defendant’s . . . claims. Developing a
            record is one of the main purposes of a suppression hearing.
            At a suppression hearing, both the defendant and the State
            can proffer testimony and any other admissible evidence
            that they deem relevant to the trial court’s suppression
            determination. In this case, though, the trial court did not
            conduct a suppression hearing because defendant never
            moved to suppress [the] evidence[.] And because no
            suppression hearing took place, we do not know whether
            the State would have produced additional evidence at a
            suppression hearing, or, if the State had done so, what that
            evidence would have been. Cf. Cardinale v. Louisiana, 394
            U.S. 437, 439, 89 S.Ct. 1161, 1163, 22 L.Ed.2d 398 (1969)
            (“Questions not raised below are those on which the record
            is very likely to be inadequate, since it certainly was not
            compiled with those questions in mind.”). To allow plain
            error review in a case like this one, therefore, “would
            ‘penalize the [g]overnment for failing to introduce [at trial]
            evidence on probable cause for arrest [or other matters
            bearing on the defendant’s claim] when defendant’s failure
            to raise an objection before or during trial seemed to make
            such a showing unnecessary.’”).

Miller, __ N.C. App. at __, 814 S.E.2d at 83-84 (citations omitted) (emphasis in

original). The same concerns are present on direct appeal of an IAC claim when no

suppression hearing has been conducted. This Court can only surmise who might

                                        - 20 -
                                   STATE V. RIVERA

                                   Opinion of the Court

have testified at the suppression hearing and what evidence that testimony would

have elicited. As the Court in Miller stated: “We just do not know, because no

suppression hearing occurred.” Id. at __, 814 S.E.2d at 84. It is therefore difficult, if

not impossible, to conduct meaningful prejudice review.

      The Miller Court also discussed the potential for intentional abuse of the

system when appellate review is allowed without the full consideration of the relevant

issues and evidence afforded the trial court pursuant to a suppression hearing:

             [A] defendant could unfairly use plain error review to his
             tactical advantage. For instance, a defendant might
             determine that his chances of winning a motion to suppress
             before or at trial are minimal because he thinks that, once
             all of the facts come out, he will likely lose. But if we were
             to allow plain error review when no motion to suppress is
             filed and hence no record is created, that same defendant
             might wait to raise a Fourth Amendment issue until appeal
             and take advantage of the undeveloped record—a record in
             which some or all of the important facts may never have
             been adduced—to claim plain error. Cf. United States v.
             Chavez–Valencia, 116 F.3d 127, 132 (5th Cir.) (“If, at trial,
             the government assumes that a defendant will not seek to
             suppress certain evidence, the government may justifiably
             conclude that it need not introduce the quality or quantity
             of evidence needed otherwise to prevail.”).

Id. at __, 814 S.E.2d at 84–85 (citation omitted). Applying the reasoning in Miller,

the potential that a defendant will seek direct appeal for an IAC claim like the one

before us, based on the failure of Defendant’s counsel to properly move to suppress

evidence, could prompt the State to attempt to introduce evidence at trial “that the

defendant may or may not later challenge on appeal. On the other hand, if the State

                                          - 21 -
                                          STATE V. RIVERA

                                         Opinion of the Court

[chooses] not to present evidence supporting [the voluntariness of] an unchallenged

[inculpatory statement], it could risk reversal on an undeveloped record under the

[IAC] standard.” Id. at __, 814 S.E.2d at 85 (citation omitted).

       The Court in Miller held that “the Court of Appeals should not have conducted

plain error review in the first place,” and that our Supreme Court did “not need to

address (and, based on our analysis, it would not be possible for us to address) the

other issue before us—namely, whether the Court of Appeals reached the right

conclusion in its plain error analysis.” Id. Prior to Miller, this Court has decided

whether the record was sufficient for direct review of defendants’ IAC claims based

on failure to properly move for suppression of evidence on a case-by-case basis.6

However, we have shown reluctance to conduct direct review of an IAC claim when

the claim is based on evidence admitted at trial after counsel’s failure to obtain a

suppression hearing due to violations of Article 53. In a recent unpublished opinion,

we discussed this Court’s reluctance:

                [T]his Court repeatedly has held that when the trial court
                denies a defendant’s motion to suppress as untimely, “we
                cannot properly evaluate defendant’s claim of ineffective
                assistance of counsel on direct appeal because no
                evidentiary hearing was held on defendant’s motion to
                suppress.” State v. Johnson, 203 N.C. App. 718, 722, 693
                S.E.2d 145, 147 (2010).      Likewise, here, we cannot

       6  See, e.g., State v. Canty, 224 N.C. App. 514, 516-17, 736 S.E.2d 532, 535 (2012) (conducting
direct review of IAC claim when trial testimony and video evidence sufficient to demonstrate officer
lacked reasonable suspicion for a traffic stop); State v. Johnson, 203 N.C. App. 718, 721–23, 693 S.E.2d
145, 146–47 (2010) (no review where there was no suppression hearing and there was conflict in the
relevant trial testimony such that prejudice review was not possible).

                                                - 22 -
                                  STATE V. RIVERA

                                 Opinion of the Court

             determine whether counsel’s conduct—even assuming it
             was deficient—prejudiced Otto because the trial court did
             not conduct an evidentiary hearing on the motion to
             suppress, and the court had no occasion, during trial, to
             make findings concerning the admission of the challenged
             evidence. As we explained in Johnson, “[b]ased upon this
             record, it is simply not possible for this Court to adjudge
             whether defendant was prejudiced by counsel’s failure to
             file the motion to suppress within the allotted time.” Id.

State v. Otto, __ N.C. App. __, 822 S.E.2d 792, 2019 WL 438392 *2 (2019)

(unpublished); see also State v. Kinch, 314 N.C. 99, 106, 331 S.E.2d 665, 669 (1985)

(“Defendant also alleges that his sixth amendment right to effective assistance of

counsel at trial was violated. We cannot properly determine this issue on this direct

appeal because an evidentiary hearing on this question has not been held.”). We

agree with the reasoning in Otto, and find that it comports with the reasoning

discussed above in Miller. We believe that Miller, as well as precedent in which our

appellate courts considered direct appeal of IAC claims based on errors by counsel

that denied defendants the opportunity, by voir dire hearing, to challenge the

admission of evidence, demonstrates that direct review in cases like the present case

is not appropriate unless it is clear that an MAR proceeding would not result in

additional evidence that could influence our decision on appellate review.

      Therefore, we hold that the current record is insufficient for direct review of

Defendant’s IAC claim, and we dismiss the claim “without prejudice to defendant’s

right to file a motion for appropriate relief in the superior court based upon an

                                        - 23 -
                                   STATE V. RIVERA

                                  Opinion of the Court

allegation of ineffective assistance of counsel. N.C. Gen. Stat. § 15A–1415(b)(3)[.]”

Kinch, 314 N.C. at 106, 331 S.E.2d at 669; State v. Fair, 354 N.C. 131, 167, 557 S.E.2d

500, 525 (2001).

      DISMISSED.

      Judges HUNTER, JR. and HAMPSON concur.

                                         - 24 -


120 U.S. 241 (1887)
QUINCY
v.
STEEL.
Supreme Court of United States.
Submitted January 4, 1887.
Decided January 31, 1887.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ILLINOIS.
Mr. George A. Anderson, Mr. Joseph N. Carter, Mr. William H. Govert, and Mr. L.H. Berger for appellants.
*242 Mr. William McFadon for appellee.
MR. JUSTICE MILLER delivered the opinion of the court.
This is an appeal from the Circuit Court of the United States for the Southern District of Illinois.
James W. Steel, the complainant in the Circuit Court, is a citizen of Alabama, and he brings his bill against the city of Quincy, a municipal corporation of the State of Illinois, and the Quincy Gas Light and Coke Company, also a corporation, of that state. He sets out a contract between the city of Quincy and the gas company, dated February 14, 1877, the only parts of which in this connection of any importance being that the gas company was to furnish a certain number of lighted lamps for the streets of said city, for which the city agreed to pay a fixed price per annum. This contract was to continue for five years. The city failed to pay the full amount due for gas in any one year, but paid a part of the bill on each year as long as the gas company continued to furnish the gas. On May 11, 1881, the city passed an ordinance declaring that it no longer recognized as binding the agreement between it and the gas company, under which the gas had been furnished, and notifying the company of that fact. The company, however, continued to furnish gas until November, 1883.
Instead of a suit by the gas company against the city of Quincy, in an action at law to enforce the rights of the company by a judgment, and by an appropriate writ of mandamus if the city did not pay the judgment the present suit is brought by Mr. Steel in his own name, on the ground that he is a stockholder in the gas company; and, as the allegations on this branch of the subject, on which he relies as his authority to maintain this suit, are important, they are given here verbatim from the bill.
He says "that your orator is advised and believes, and so states the fact to be, that the said company has a just and valid claim against said city of Quincy, and one recoverable in the courts by some suit or suits in the name of said company; that your orator has at different times endeavored to *243 induce the board of directors of said company to institute a suit or suits to recover the said claim against said city; that your orator now is, and for more than four years last past has been, a stockholder in said company; that he now has, and during the entire period last aforesaid has had, seventy-five shares of the capital stock of said company; that said last-named endeavors have been made while your orator was said stockholder; that so far, and up to now, your orator has not succeeded in persuading said directors to institute as aforesaid; that your orator, on August 1, 1885, caused to be addressed to said board a communication in writing, directing and requiring said board to resolve to at once institute suit against said city of Quincy, in the name of said company, in such court or courts as were proper, for the recovery of said claim; that said board of directors laid said communication upon the table, as your orator is informed and believes, and therefore so states, and refused to agree to comply with the request therein contained; that whatever claim said company has by reason of the matters and things above alleged will be barred in considerable part before a meeting of the stockholders of said company will occur; that a part of said claim either has been or is about to be barred by the statute of limitations; that further delay in bringing suit will result in a part of said claim being barred by the statute of limitations; and that this suit is brought in good faith, and for the collection of, and to compel the collection of, what your orator believes to be a meritorious claim."
The decree of the court below was rendered on a demurrer to the bill filed by the city of Quincy, which, being overruled, the city refused to plead further, and decree was thereupon rendered against it. This decree, made on the 1st day of March, 1886, among other things, "orders, adjudges, and decrees that said The Quincy Gas Light and Coke Company have and recover of said defendant city of Quincy the sum of $36,116.21." It then makes provision for the enforcement of this decree by certain orders concerning future annual appropriations to be made by the city for payment out of its annual tax levy.
*244 We are of opinion that the demurrer of the city of Quincy should have been sustained, for the reason that Mr. Steel shows no sufficient ground why he should have been permitted as a stockholder of the gas company to sustain this bill. In order to do this the circumstances must be such as to justify the court, in the interest of justice, to override two cardinal principles of Federal jurisprudence. One of these is, that the litigants in the Federal courts, where the right to sustain such litigation depends upon the citizenship of the parties, shall be citizens of different states. In this case the real right of action and the real contest before the court, if it had proceeded, would have been between the two corporations, organized under the laws of Illinois, and existing and doing business in the same place, to wit, the gas company and the city of Quincy. By sustaining this bill the gas company recovers a judgment in terms against the city for the amount in controversy under the contract.
The other principle which it is necessary to override is, that in the Federal courts the distinction between actions at law and suits in equity has always been kept up. In the present case it is but a plain suit to recover damages on a written contract by the one corporation against the other on account of a violation of that contract, except as Mr. Steel endeavors to bring himself into the case as having rights which he cannot enforce in a court of law. It is purely and simply a suit to recover money on a written contract in an action in the nature of assumpsit.
If, therefore, Mr. Steel, by virtue of being a citizen of Alabama, has any right to prosecute this suit in a court of the United States, and in a court of equity instead of a court of law, it is very obvious that he should make this right plain.
Prior to 1875 cases had come into the courts of the United States, especially into the Circuit Courts, where citizenship had been simulated, and parties improperly made or joined either as plaintiffs or defendants, for the purpose of creating a case cognizable in the Circuit Courts originally, or removable thereto from the state courts; and as it very frequently occurred that both plaintiffs and defendants were willing to seek that court *245 in preference to the state courts, it had been found very difficult to prevent these improper cases from being tried in those courts. In the act of March 3, 1875, an attempt was made to correct this evil, and by the fifth section of that act it was declared "that if, in any suit commenced in a Circuit Court, or removed from a state court to a Circuit Court of the United States, it shall appear to the satisfaction of said Circuit Court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said Circuit Court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said Circuit Court shall proceed no further therein, but shall dismiss the suit or remand it to the court from whence it was removed, as justice may require."
In the cases of Hawes v. Oakland, 104 U.S. 450, and Huntington v. Palmer, 104 U.S. 482, the question of the growth of the form of invoking Federal jurisdiction, where it does not otherwise exist, by the attempt of a corporation which cannot sue in the Federal court to bring its grievance into that court by a suit in the name of one of its stockholders who has the requisite citizenship, was very much considered. In order to give effect to the principles there laid down this court at that term adopted Rule 94 of the Rules of Practice for Courts of Equity of the United States, which is as follows:
"Every bill brought by one or more stockholders in a corporation, against the corporation and other parties, founded on rights which may properly be asserted by the corporation, must be verified by oath, and must contain an allegation that the plaintiff was a shareholder at the time of the transaction of which he complains, or that his share had devolved on him since, by operation of law; and that the suit is not a collusive one to confer on a court of the United States jurisdiction of a case of which it would not otherwise have cognizance. It must also set forth with particularity the efforts of the plaintiff to secure such action as he desires on the part of the managing directors or trustees, and, if necessary, of the shareholders, and *246 the causes of his failure to obtain such action." 104 U.S. ix-x.
The bill in the present case, although verified by oath, is far from complying with the letter or the spirit of this rule. It does not contain an allegation that the plaintiff was a shareholder at the time of the transaction of which he complains, although the allegation on that subject includes a part of the time in which the city of Quincy failed to pay for its gas; but inasmuch as the sworn allegation in the bill was made on the 18th day of August, 1885, and he there swears that he had been the owner of the stock on which he brings this suit over four years, it is easy to suppose that he acquired this stock after the 11th day of May, 1881, on which day the city by its official action notified the gas company that it repudiated the contract and would no longer be bound by it. And it is not an unreasonable supposition that the gas company, forseeing litigation which it might be desirable for that company to have carried on in a Federal court, immediately after receiving notice of that resolution had this stock placed in the hands of Mr. Steel for the purpose of securing that object, and though the suit was delayed for two or three years, it was probably because the city continued to pay some part of the demand for the gas furnished by the company. The bill does not contain the allegation expressly prescribed by this rule, that "the suit is not a collusive one to confer on a court of the United States jurisdiction of a case of which it would not otherwise have cognizance." The allegation of the bill, "that this suit is brought in good faith, and for the collection of, and to compel the collection of, what your orator believes to be a meritorious claim," is by no means the equivalent of this provision of the rule, for it may very well be understood that the party who is seeking to enforce a debt which he believes to be due is acting in good faith for the purpose of compelling its collection, while he may be well aware that he is imposing upon the court to which he actually resorts a jurisdiction which does not belong to it.
The rule also requires that he must set forth with particularity his efforts to secure action on the part of the managing *247 directors or trustees of the corporation of which he is a member, and, if necessary, of the shareholders, and the causes of his failure to obtain such action. In the case before us he seems to have made but a single effort to induce the directors of the gas company to institute a suit against the city to recover the money, and this was by a communication in writing addressed to the board, August 1, 1885. No copy of that letter is produced, but it is said that the board of directors laid the communication on the table. No copy of the order of the board upon that subject is produced; no effort at conversation with any of the directors, or any earnest effort of any kind upon his part to induce the directors to bring the suit is shown in the bill; no attempt to call the attention of the shareholders to this matter during the four years in which he said he was a shareholder, and during which time the city was failing to pay its debt to the gas company, nor any effort at any of the meetings of the shareholders or of the directors to induce them to enforce the rights of the company against the city, is shown. The most meagre description possible of a bare demand in writing, made sixteen days before the institution of this suit, is all we have of the efforts which he should have made to induce this corporation to assert its rights. This letter was addressed to the board of directors, August 1, 1885, from what point is not stated, but it may reasonably be inferred that it was from Alabama, of which state he was a citizen. The bill itself is sworn to the 13th day of August thereafter. How long a time was left for the consideration of this question by the board of directors, and what earnest efforts Mr. Steel may have made to induce their favorable action, may be easily inferred from the speed with which the bill was sworn to in Alabama and filed after he addressed his letter to the board. The inference that the whole of this proceeding was a preconcerted and simulated arrangement to foist upon the Circuit Court of the United States jurisdiction in a case which did not fairly belong to it, is very strong.
In the case of Hawes v. Oakland, 104 U.S. 450, 461, in speaking of this perfunctory effort to induce the trustees of the corporation to act, it is said: "He (the plaintiff) must make *248 an earnest, not a simulated, effort with the managing body of the corporation to induce remedial action on their part, and this must be made apparent to the court. If time permits or has permitted, he must show, if he fails with the directors, that he has made an honest effort to obtain action by the stockholders, as a body, in the matter of which he complains. And he must show a case, if this is not done, where it could not be done, or it was not reasonable to require it." Again it is said: "He merely avers that he requested the president and directors to desist from furnishing water free of expense to the city, except in case of fire or other great necessity, and that they declined to do as he requested. No correspondence on the subject is given. No reason for declining... . No attempt to consult the other shareholders to ascertain their opinions or obtain their action. But within five days after his application to the directors this bill is filed."
In the case of Huntington v. Palmer, 104 U.S. 482, 483, the court says: "Although the company is the party injured by the taxation complained of, which must be paid out of its treasury if paid at all, the suit is not brought in its name, but in that of one of its stockholders. Of course, as we have attempted to show in the case just mentioned, Hawes v. Oakland, this cannot be done without there has been an honest and earnest effort by the complainant to induce the corporation to take the necessary steps to obtain relief." See Detroit v. Dean, 106 U.S. 537.
We think upon the face of the bill in this case there is an entire absence of any compliance with the rule of practice laid down for equity courts in such cases, and of any evidence of an earnest and honest effort on the part of the complainant to induce the directors of the gas company to assert the rights of that corporation. On the contrary, the clear impression left upon reading the bill is, that it is an attempt to have a plain common law action tried in a court of equity, and the rights of parties decided in a court of the United States who have no right to litigate in such a court, and that there is no sufficient reason in the bare fact that Mr. Steel is a stockholder in the corporation which justifies such a proceeding.
If other evidence were wanting of the soundness of our inferences *249 on this subject, it is to be found in the fact that while the decree in this case was rendered, on the 1st day of March, 1886, a suit was commenced by the gas company against the city of Quincy, on the same causes of action, in the Circuit Court of Adams County, in the State of Illinois, on the 31st day of March of the same year. This fact was brought to the attention of the Circuit Court of the United States at the same term in which the decree now appealed from was rendered, by a petition to vacate and set aside the decree, which that court overruled. It seems very obvious that the gas company, having obtained through the instrumentality of this collusive suit by Mr. Steel a decree settling its rights against the city of Quincy, then brought in its own name a suit in the state court, which it had not dared to do until those rights were adjusted in a court of the United States.
We are of opinion that the demurrer to the plaintiff's bill ought to have been sustained and the bill dismissed. The decree is, therefore, reversed, and the case remanded to the Circuit Court with instructions to that effect.


Opinion issued July 30, 2009

In The
Court of Appeals
For The
First District of Texas
____________

NO. 01-08-00063-CV
____________

WILLIE H. GOFFNEY and GLADYS R. GOFFNEY, Appellants

V.

HOUSTON INDEPENDENT SCHOOL DISTRICT, CITY OF HOUSTON,
HOUSTON COMMUNITY COLLEGE SYSTEM, HARRIS COUNTY,
HARRIS COUNTY EDUCATION DEPARTMENT, PORT OF HOUSTON
AUTHORITY OF HARRIS COUNTY, HARRIS COUNTY FLOOD
CONTROL DISTRICT, HARRIS COUNTY HOSPITAL DISTRICT,
Appellees

On Appeal from the 165th District Court
Harris County, Texas
Trial Court Cause No. 2005-32574

MEMORANDUM OPINION

          This is a delinquent ad valorem tax case.  Willie and Gladys Goffney appeal
the trial court’s judgment awarding appellees, who are numerous taxing units,
delinquent ad valorem taxes, penalties, and interest on five separate accounts.  We
affirm.I.  Background
A.  The Demolition of the Sakowitz Street Apartments
          The Goffneys owned seven properties comprised of 11 buildings and 85
apartments at 2510 Sakowitz (the “Sakowitz Street Apartments”).
  The City of
Houston (“City”) first became involved with the Goffneys and the conditions existing
at the Sakowitz Street Apartments in June 1998.  After conducting a “dangerous
building hearing” at which the Goffneys were present, the City issued an order that
gave the Goffneys 20 days to vacate the structures, 20 days to install perimeter
fencing, 20 days to obtain a City permit to secure the buildings to City specifications,
and 90 days to obtain a City building repair permit or a City demolitions permit.  The
order also provided that if the Goffneys failed to comply with the order, the City
“shall be authorized to remedy, alleviate, or remove any substandard or dangerous
building” in accordance with the provisions of the Houston Comprehensive Urban
Rehabilitation and Building Minimum Standards Code (“CURB”)  and a lien might
be placed against the property “plus ten percent (10%) interest per annum until paid.”
The Goffneys did not comply with all of the terms of this order.   Gladys Goffney
testified that they engaged a contractor and went looking for a $750,000 loan “to
rehab the whole project” but were unable to complete these rehabilitation efforts
because of a lawsuit brought against her by Sylvia Rabson.

          In November 1999, one of the Sakowitz Street Apartment buildings caught fire
and burned.  In the succeeding months, six other buildings on this property caught
fire and burned. As a result, the City issued a series of demolition orders for the
property. Between November 15, 1999 and May 4, 2000, the Sakowitz Street
Apartment buildings were demolished by the City.  The City did not hold any
hearings before the buildings were demolished.
          On May 11, 2000, the Dangerous Building Enforcement Neighborhood
Protection Division made a “Request to Schedule Emergency Hearing” regarding the
Sakowitz Street Apartments.  That request was made one week after the last of the
buildings was demolished.
          By letters dated July 19, 2000 and sent by certified mail, return receipt
requested, the City sent to all persons having an interest in the property as shown by
the Harris County real property records, including the Goffneys, notice that the
Sakowitz Street Apartments had been demolished because they posed “an immediate
danger to the health, life or safety” of persons and that a hearing “concerning the
actions taken” by the City “in connection with” the demolition of the buildings was
set for August 7, 2000 at 8:30 a.m.  After conducting the hearing, the City hearing
officer entered several orders in which he decreed that the Sakowitz Street
Apartments “were a dangerous building as defined in the City of Houston Code of
Ordinances” and that the City was required to take immediate action to demolish the
buildings pursuant to the City’s ordinances.
B.      Events in Rabson v. Goffney
          On January 7, 1999, Thomas and Sylvia Rabson were awarded a judgment
against Gladys Goffney stemming from Mrs. Goffney’s representation of Sylvia
Rabson in a will contest that terminated unfavorably to Rabson.  See Goffney v.
Rabson, 56 S.W.3d 186 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).
          After filing a “Notice of Judgment Lien Interest in Community Property of
Gladys R. Goffney, Wife of Willie H. Goffney,” the Rabsons obtained an alias writ
of execution.  Actions taken based on that writ culminated in a Deed Under
Execution, filed October 25, 1999, which transferred ownership of Gladys Goffney’s
interest in many tracts of property to Rabson and Broocks, L.P.  Included in the Deed
of Execution were the Sakowitz Street Apartments.

          The Rabsons then returned to the 55th Judicial District Court seeking
appointment of a receiver.  The trial court appointed Steven Weltman (“Master”) as
receiver and Master in Chancery “with the power and authority to take possession of
and sell the non-exempt property, real and personal of Respondent [Gladys
Goffney].”  The trial court’s order also gave the Master the authority to “take
possession of and sell the community interest in any and all exempt real or personal
property of Willie Goffney.”

          Gladys Goffney appealed the trial court’s judgment to the Fourteenth Court of
Appeals.  The appellate court reversed the judgment in favor of the Rabsons and
rendered a take-nothing judgment. As a result of the outcome of that appeal, the real
property upon which the Rabsons had levied execution was reconveyed back to
Gladys Goffney by a special warranty deed.

                                         II.    Procedural History

          After the demolition of the Sakowitz Street Apartment buildings, the City filed
this action against the Goffneys to recover a judgment in the amount of $114,051.12
for special assessments made due to the demolition pursuant to Chapter 342 of the
Texas Health and Safety Code Ann., Article XI, Chapter 10 of the Houston Code of
Ordinances, and Article IV, Section 9 of the City of Houston Charter.  See Tex.
Health & Safety Code Ann. § 342.006 (Vernon Supp. 2008).  The City and the
taxing units also sought to collect delinquent ad valorem property taxes on the
Sakowitz Street Apartments and other real property owned by the Goffneys for years
ranging from 1999 to 2004.
          Following a bench trial, the trial court found the Goffneys owed the delinquent
ad valorem taxes and the special assessments to the taxing units, and awarded them
the amounts due. The Goffneys timely filed a motion for new trial, which was
overruled.
          On appeal, the Goffneys complain of the City’s demolition of the Sakowitz
Street Apartments and assessment of demolition costs.   In their first two issues, the
Goffneys argue that the trial court erred in entering judgment in favor of the City and
the taxing units because (1) the City’s emergency hearing regarding the demolition
of the Sakowitz Street Apartments did not comport with procedural due process and
(2) sections 373 and 395 of CURB, which give the City the authority to demolish the
apartment buildings and place a lien against the property for the costs of the
demolition, violate their procedural due process rights guaranteed under the United
States Constitution and the Texas Constitution. In their final issue, the Goffneys
contend that the trial court erred in dismissing their counterclaim without a hearing.III. Discussion
A.      Standing
           We will first address the City’s and taxing units’ contention that the Goffneys’
lack standing to bring this appeal challenging the constitutionality of the August 7,
2000 hearing and the assessment of demolition fees against them. Specifically, the
City contends that the Goffneys do not have standing because they did not own title
to the property either at the time of this hearing or when the Sakowitz Street
Apartment buildings were demolished.

          Generally, only parties of record have standing to appeal.  See Cont’l Cas. Co.
v. Huizar, 740 S.W.2d 429, 430 (Tex. 1987).  Standing requires that the parties have
a real controversy which can actually be determined by the relief sought.  Tex. Ass’n
of Bus. v. Tex. Air Control Bd., 852 S.W.2d. 440, 446 (Tex. 1993).  In other words,
a person has standing to appeal when he is personally aggrieved by the alleged
wrong.  Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661
(Tex. 1996).
          In this case, the trial court signed a judgment for damages against the Goffneys
based on evidence regarding the outcome of the municipal hearing held on August
7, 2000, the City’s demolition of the Sakowitz Street Apartment buildings, and the
City’s assessment of the demolition costs.  At trial, the City contended that it had the
authority to seek recovery of the demolition costs under CURB.  Thus, regardless of
whether the Goffneys had legal title to the property at the time of the City’s hearing,
demolition, and assessment of demolition costs, they were personally aggrieved by
the entry of a judgment holding them liable for costs incurred in connection with the
City’s actions, including its enforcement of CURB, and the resolution of the issues
presented on appeal challenging the legality of those actions will affect the Goffneys’
interests.  Under these circumstances, we conclude that the Goffneys have standing
to appeal the City’s and taxing units’ judgment.  See Nevada Gold & Silver, Inc. v.
Andrews Indep. Sch. Dist., 225 S.W.3d 68, 74 (Tex. App.—El Paso 2005, no pet.).
B.      Due Process Challenge to August 7, 2000 Hearing

          In their first issue, the Goffneys contend that the trial court erred in entering
judgment in favor of the City and the taxing units because the City violated the
Master’s constitutional right as an “owner” of the property to procedural due process
by failing to notify him of the August 7, 2000 hearing regarding the demolition of the
apartments. The Goffneys argue that they have standing to assert the Master’s
procedural due process claims because their “equitable” title to the property merged
with the Master’s “legal” title to the property at the conclusion of the Rabson
litigation.
          Additionally, the Goffneys contend that the City violated the CURB
ordinance’s requirement that a hearing be conducted no later than 90 days after a
demolition. As a result, the Goffneys argue, the City’s hearing officer lacked subject
matter jurisdiction to enter any orders concerning the property at the August 7, 2000
hearing.  For these reasons, the Goffneys contend that the entire hearing was unlawful
and any order issued by the hearing officer concerning the demolition and the
assessment of demolition costs cannot serve as the basis for the trial court’s judgment
against them. We find these arguments unpersuasive.
          The Goffneys have no standing to assert any constitutional due process rights
belonging to the Master.  Generally, only the entity that has not been properly served
with notice has standing to challenge the violation of its procedural due process
rights. See Sw. Constr. Receivables, Ltd. v. Regions Bank, 162 S.W.3d 859, 864 (Tex.
App.—Texarkana 2005, pet. denied).  With the single exception of the principle
allowing an insurance company to stand in the shoes of its insured, we have found
nothing in our statutes or Texas caselaw that supports the Goffneys’ position that a
defendant in a civil suit has standing to challenge, on procedural due process grounds,
whether a third party has been properly given notice of a hearing; nor have the parties
directed this Court’s attention to any such authority.  See id.  No evidence in the
record indicates that the Master assigned his right to assert such a claim to the
Goffneys.  Based on the absence of authority and evidence in support of the
Goffneys’ novel standing argument, we reject their attempt to assert the Master’s
procedural due process claims.            Nor were the Goffneys personally deprived of procedural due process as a
result of the lack of notice to the Master. The record reflects that the lack of notice
to the Master did not, in any way, prevent the Goffneys from receiving notice or
having an opportunity to air their complaints at that hearing regarding the City’s
conduct. It is undisputed that the Goffneys received actual notice that the City
demolished the Sakowitz Street Apartments because they posed “an immediate
danger to the health, life or safety” of persons, and that a hearing “concerning the
actions taken” regarding this property by the City was set for August 7, 2000 at 8:30
a.m.
 The notice advised the Goffneys that, at the hearing, they could “appear in
person and/or be represented by counsel” and that they would be able to “present
testimony and cross examine all witnesses” at the hearing. The Goffneys do not
complain on appeal that the City’s hearing officer prevented them from exercising
any of these rights.
          Finally, the City’s failure to hold the hearing within the CURB ordinance’s 90-day time limit for setting “emergency” hearings does not deprive the City hearing
officer of subject matter jurisdiction to enter orders regarding the Sakowitz Street
Apartments.
  The CURB ordinance creates the position of hearing official and grants
him certain powers and responsibilities regarding demolished properties.
Specifically, pursuant to CURB sections10-317, 10-365 and 10-432, the hearing
official designated by the Houston Chief of Police, is empowered to conduct and
issue rulings in the type of post-deprivation hearing now challenged by the Goffneys.
See Houston, Tex., Comprehensive Urban Rehab. And Bldg. Min. Standards
Code, ch. 10, art. IX, §§§ 317, 365, 432 (2009).  Nowhere does the CURB ordinance
state that the 90-day time limit is a jurisdictional requirement for a post-deprivation
hearing like the August 7, 2000 hearing held in this case.  See, e.g., Albertson’s, Inc.
v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999) (holding that “just because a statutory
requirement is mandatory does not mean that compliance with it is jurisdictional.”).
Accordingly, the City’s failure to hold the post-deprivation hearing within 90 days
of the first demolition does not deprive the City’s hearing officer of subject matter
jurisdiction regarding the Sakowitz Street Apartments.
          Since the 90-day limit for setting hearings under CURB is not jurisdictional,
the Goffneys must have presented their arguments regarding the City’s alleged failure
to comply with this time limit to the trial court, or these arguments are waived on
appeal.  See Hassan v. Greater Houston Transp. Co., 237 S.W.3d 727, 731 (Tex.
App.—Houston [1st Dist.]  2007, pet. denied) (holding arguments regarding
compliance with mandatory, nonjurisdictional requirements can be waived if not
timely asserted).  Texas Rule of Appellate Procedure 33.1 requires that a party present
the complaint to the trial court in a manner that states “the grounds for the ruling . .
. with sufficient specificity to make the trial court aware of the complaint, unless the
specific grounds [are] apparent from the context.”  Tex. R. App. P. 33.1(a)(1)(A).
          A review of the record reveals that the Goffneys did not present any arguments
to the trial court regarding the time limit for setting emergency hearings, nor did they
reference the pertinent section of the ordinance.
  Therefore, the Goffneys did not
preserve this issue for appeal.  See id.  Accordingly, the Goffneys’ first issue is
overruled.
C.      Due Process Challenge to sections 373 and 395 of CURB
          In their second issue, the Goffneys argue that sections 373 and 395 of  CURB
violate the procedural due process requirements of the Fourteenth Amendment of the
United States Constitution and the Texas Constitution. Section 373, Article IX,
Chapter 10 of the City of Houston’s Code of Ordinances sets forth the administrative
expenses of inspecting buildings, locating owners, conducting hearings, and issuing
notices and orders.
  Section 395 of the ordinance provides that the cost of the work
and the administrative expenses incurred in vacating, securing, repairing or
demolishing a dangerous building shall constitute a lien on the property.
  The
Goffneys contend that these ordinances are unconstitutional because they fail to
provide procedural due process, specifically “an opportunity to promptly receive
actual notice of the charges for demolition or any other costs associated with the
demolition as soon as the costs occur rather than simply receiving constructive notice
of the filing of a lien.”  The Goffneys also argue that these ordinances fail to provide
property owners with an opportunity to be heard regarding any cost discrepancies.
The City and the taxing units respond that, pursuant to Texas Rule of Appellate
Procedure 33.1, the Goffneys have waived these arguments on appeal because they
failed to present them to the trial court.  We agree.
          The Goffneys have not preserved error regarding their constitutional due
process challenges to sections 373 and 395 of CURB because they failed to present
these arguments to the trial court.  See Tex. R. App. P. 33.1(a)(1)(A).  The record
refects that, at trial, the Goffneys did not plead or argue that these ordinances violated
either the Texas or United States Constitution.
           A party must first present due process arguments to the trial court to pursue
them on appeal.  See, e.g, In re L.M.I. & J.A.I, 119 S.W.3d 707, 711 (Tex. 2003);
Ratsavong v. Menevilay, 176 S.W.3d 661, 671 (Tex. App.—El Paso 2005, pet.
denied) (due process arguments waived when they were not brought to trial court’s
attention); Santos v. Comm’n for Lawyer Discipline, 140 S.W.3d 397, 404–05 (Tex.
App.—Houston [14th Dist.] 2004, no pet.); McDonald II v. State, 693 S.W.2d 660,
661 (Tex. App.—Dallas 1985, no writ).
           Notwithstanding their arguments on appeal, the Goffneys did not present any
arguments to the trial court that made the court aware that they were raising a due
process challenge as to the mechanism by which costs are imposed under the
ordinance or as to the ordinance itself.  In their “Original Answer to Plaintiffs’
Second Amended Petition for Taxes and Claim for City of Houston Special
Assessments,” and in their counterclaim, the Goffneys make only one passing
mention of due process.  In their original answer, the Goffneys’ complain of the
City’s failure to notify them of the emergency hearing.  The Goffneys’ counterclaim
addresses the City’s failure to send notice of the demolishment and the demolition
lien to the correct address.  Such solitary and passing references to due process
without any specific citation to caselaw were insufficient to alert the trial court or the
opposing parties that the Goffneys were asserting a constitutional complaint
regarding the ordinances themselves.  See Lee v. City of Houston, No. 14-05-00366-CV, 2006 WL 2254401, at *4 (Tex. App.—Houston [14th Dist.] Aug. 8, 2006, pet.
denied) (mem. op.) (holding single reference to due process insufficient to assert due
process challenge on appeal).  Furthermore, the due process arguments the Goffneys
raise on appeal, which concern the ordinance itself, do not comport with the due
process arguments they attempted to raise in the trial court regarding notice of
hearing and demolition. See Wolfahrt v. Holloway, 172 S.W.3d 630, 639–40 (Tex.
App.—Houston [14th Dist. 2005], pet. denied) (holding that to preserve error,  party’s
argument in trial court must comport with argument on appeal).  Accordingly, error
was not preserved under Rule 33.1 and we overrule the Goffneys’ second issue.

D.     Dismissal of the Goffneys’ Counterclaim Without a Hearing
         In issue three, the Goffneys contend that the trial court erred in dismissing their
counterclaim without a hearing.
         Texas Rule of Appellate Procedure 38.1(h) requires that an appellant’s brief
“must contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.”  Tex. R. App. P. 38.1(h).  “Rule 38 requires
[a party] to provide us with such discussion of the facts and the authorities relied upon
as may be requisite to maintain the point at issue.”  Tesoro Petroleum Corp. v. Nabors
Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet.
denied).  Issues on appeal are waived if an appellant fails to support his contention by
citations to appropriate authority.  Abdelnour v. Mid Nat’l Holdings, Inc., 190 S.W.3d
237, 241 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Daniel v. Falcon Interest
Realty Corp., 190 S.W.3d 177, 189 (Tex. App.—Houston [1st Dist.] 2005, no pet.)
         The Goffneys’ argument with respect to their third issue does not cite any
authority in support of their contention that the trial court was required to hold a
hearing before dismissing their counterclaims.  We therefore hold that the Goffneys
have waived their third issue because of inadequate briefing.  Tex. R. App. P. 38.1(h);
Wheeler v. Methodist Hosp., 95 S.W.3d 628, 646 (Tex. App.—Houston [1st Dist.]
2002, no pet.)
IV.  Conclusion
         For the foregoing reasons, we overrule the Goffneys’ issues and affirm the trial
court’s judgment.

                                                            George C. Hanks, Jr.
                                                            Justice

Panel consists of Justices Keyes, Hanks, and Bland.


601 F.2d 582
U. S.v.Hambright
No. 78-6082
United States Court of Appeals, Fourth Circuit
7/19/79

1
W.D.N.C.

AFFIRMED


359 F.2d 396
PACIFIC METAL COMPANY, Appellant,v.Fairell D. JOSLIN, Trustee of the Estate of Edsco Mfg. Co.,bankrupt, Appellee.
No. 19897.
United States Court of Appeals Ninth Circuit.
March 10, 1966.

Pendergrass, Spackman, Bullivant & Wright, Walter H. Pendergrass, Ronald E. Bailey, Portland, Or., Robinson, Landerholm, Memovich & Lansverk, Irwin C. Landerholm, Vancouver, Wash., for appellant.
John L. La Londe, Vancouver, Wash., for appellee.
Before JERTBERG, DUNIWAY and ELY, Circuit Judges.
DUNIWAY, Circuit Judge:

1
Pacific Metal Company, an Oregon corporation, a creditor of Edsco Manufacturing Co., bankrupt, appeals from a decision of the District Court for the Western Division of Washington.  We affirm.

2
The facts are stipulated.  Pacific sold certain machinery to Edsco under a conditional sale contract.  The machinery was delivered to and used by Edsco at Vancouver, Clark County, Washington.  The contract was duly and regularly filed, as a conditional sale contract, in the office of the County Auditor of Clark County.  It is valid under the laws of Oregon.  Before using the form of contract for sales in Washington, Pacific obtained the opinion of Washington counsel that the form would be valid as a conditional sale contract in that state.  It used the form in reliance upon that opinion.  Both Pacific and Edsco believed that the contract in question was valid and enforceable, and intended that it should be.  If the contract is not valid, it is because of a mistake of law on the part of Pacific and Edsco.

3
Edsco's trustee asserted, and the court held, that the conditional sale contract was void as against the trustee.  The contract is not valid as a conditional sale in Washington, but is valid as a chattel mortgage.  The reason is that the contract permits both repossession and a deficiency judgment, under the following language:

4
a.  The portion appearing in Sec. 5(a), dealing with repossession, and reading as follows: '* * * in which event Purchaser shall remain bound for and shall and does agree to pay to Seller the balance remaining unpaid, with interest thereon in accordance with the provisions hereof, * * *.'

5
b.  The portion appearing in Sec. 5 reading as follows: 'All rights and remedies of Seller shall be and are cumulative and not alternative.'

6
The Washington Supreme Court has held that such provisions render the contract invalid as one of conditional sale, and its recording as a conditional sale ineffectual.  It may still be valid against creditors, as a chattel mortgage, if recorded as such.  (West American Finance Co. v. Finstad, 1928, 146 Wash. 315, 262 P. 636; cf. Smith v. Downs, 1956, 48 Wash.2d 165, 292 P.2d 205; Investment Service Co. v. La Londe, 1964, 63 Wash.2d 834, 389 P.2d 414.)  That court has said that the rule is one of law, not a mere rule of construction.  (Investment Service Co. v. La Londe, supra, at 838 of 63 Wash.2d, at 417 of 389 P.2d.)  Pacific concedes that this is the Washington law.  It sought to have the contract reformed, based upon a mutual mistake of law, by striking the language that we have quoted.  This the referee and the trial court refused to do.1

7
The court rested its decision on Pacific's failure to comply with the appropriate recording statute.  Washington has separate statutes for recording conditional sale contracts (R.C.Wash. 63.12.010) and chattel mortgages (R.C.Wash. 61.04.020).  Admittedly, the latter statute was not complied with; no affidavit of good faith accompanied the contract, as that statute requires.  Thus, considered as a chattel mortgage, the contract is void against the trustee, who stands in the shoes of creditors.

8
The section dealing with conditional sale contracts reads, in part (63.12.010):

9
'Sale absolute unless contract filed-- Exceptions.  All conditional sales of personal property * * * containing a conditional right to purchase, where the property is placed in the possession of the vendee, shall be absolute as to all bona fide purchasers * * * and subsequent creditors, whether or not such creditors have or claim a lien upon such property, unless within ten days after the taking of possession by the vendee, a memorandum of such sale, * * * shall be filed in the auditor's office of the county, wherein, at the date of the vendee's taking possession of the property, the vendee resides.'

10
The filing was within the time and with the officer specified, but, as filed, the contract was invalid on its face, as a contract of conditional sale.

11
Pacific asserts that the contract was subject to an equity of reformation, which would make it valid, that creditors (and the trustee in bankruptcy, who represents them) are not bona fide purchasers, and that therefore the contract can be reformed as against the trustee.  The argument is appealing, but the law of Washington appears to be to the contrary, and the trial judge, himself an experienced Washington lawyer, so held.

12
The statute makes the sale absolute as to creditors as well as bona fide purchasers.  And the Washington court has refused to permit reformation in order to validate a filing under it as against creditors, Malott v. General Machinery Co., 1943, 19 Wash.2d 62, 141 P.2d 146, 'because an instrument cannot be reformed so as to affect the rights of innocent third parties.'  (Ibid at p. 65, 19 Wash.2d, p. 148, 141 P.2d) There, the mistake was an erroneous statement, in the contract, of the date of delivery of possession, so that it appeared on the face of the contract that the recording was late.  Actual delivery was within the prescribed ten days, and reformation was sought to show the correct date.  Pacific would distinguish the case on the ground that it involved a failure to comply with filing requirements, while here those requirements were complied with, but the contract itself was defective.  We cannot follow the distinction.  In either case, a creditor examining the filed contract could conclude that, as to him, the sale was absolute.2  And, in Malott, it was to avoid defeating creditors' rights that the court declined to decree reformation.  We find no Washington case to the contrary.

13
Affirmed.

1
 It is doubtful whether a valid ground for reformation has been shown.  Nowhere does it appear that the parties did not intend to use the language in question.  And the Washington court has said:
'It is now the law of this jurisdiction that the use of certain words in the contract between the parties must be held to lead to certain legal consequences, even though the parties may not have intended such a result.'
Investment Service v. La Londe, supra, 63 Wash.2d at 838-839, 389 P.2d at 416.  However, the trial court did not rest its decision on this ground, and we do not further consider it.

2
 The Washington court has gone very far in this direction.  Seaboard Dairy Credit Corp. v. Paulsen, 1933, 174 Wash. 594, 25 P.2d 974; Grunbaum Bros. Furniture Co. v. Humphrey Inv. Corp., 1926, 141 Wash. 329, 251 P. 567; Embagi v. Northwestern Improvement Co., 1918, 101 Wash. 558, 172 P. 834


536 U.S. 976
SWOYERv.REED.
No. 00-9554.
Supreme Court of the United States.
August 5, 2002.

1
534 U. S. 832. Petitions for rehearing denied.


111 F.3d 133
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.Steve NEWTON, Jr., Plaintiff-Appellant,v.CHICAGO SCHOOL REFORM BOARD OF TRUSTEES, et al., Defendants-Appellees.
No. 96-4027.
United States Court of Appeals, Seventh Circuit.
Submitted March 27, 1997.*Decided April 3, 1997.

Before BAUER, EASTERBROOK and EVANS, Circuit Judges.

Order

1
Plaintiff used to be the principal at Chicago's John Marshall Metro High School.  On October 25, 1996, he was reassigned to the Central Office of the School Reform Board pending an investigation of his conduct.  After a hearing on November 8, the Board declared that an "educational crisis" existed at the High School, a finding that under Illinois law permits the head of the Board to remove a principal.  The formal "crisis" finding was made on December 17, and plaintiff was fired the same day.

2
This suit, purportedly under 42 U.S.C. § 1983, was commenced after the reassignment of October 25 but before the hearing to determine whether a crisis existed.  The district court delivered an oral opinion and issued an order on November 4 denying plaintiff's request for a preliminary injunction that would have restored him to the principalship pending the hearing.  Plaintiff appealed, and the parties have filed briefs.

3
Events have overtaken this case.  The relief plaintiff sought--reinstatement pending a hearing--is no longer available.  The hearing has been held and a final administrative decision taken.  Plaintiff did not lose any income for the period between October 25 and December 17;  his request for a restoration of the "emoluments associated with being principal of the Marshall High School" is perplexing.  The appeal is accordingly moot.

4
The district court should consider whether the case itself is moot.  Plaintiff's complaint did not challenge his discharge (which lay in the future).  If he elects to amend the complaint, plaintiff must recognize that § 1983 permits litigation only of claims based on federal law.  All of the arguments in plaintiff's appellate brief appear to rest on Illinois law.  The state school reform law is reproduced at length;  the principal brief does not cite a single case, state or federal, and the reply brief cites a single case that discusses the concept of irreparable harm but does not support any relevant substantive proposition.  Lack of diversity of citizenship prevents adjudication of a claim based on state law--and it should go without saying that federal courts do not use the due process clause to enforce state law.  Archie v. Racine, 847 F.2d 1211, 1215-18 (7th Cir.1988) (en banc).  Indeed, arguments of this stripe are sanctionably frivolous.  Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073, 1081 (7th Cir.1987).  If plaintiff wants to pursue whatever rights he may have under Illinois law, he must proceed in state court.

5
The appeal is dismissed as moot.

*
 After an examination of the briefs and the record, we have concluded that oral argument is unnecessary, and the appeal is submitted on the briefs and the record.  See Fed.R.App.P. 34(a);  Cir.R. 34(f).  The oral argument formerly scheduled for April 14, 1997, is cancelled


Dismissed and Opinion filed May 30, 2002

Dismissed and Opinion filed May 30, 2002.

In The

Fourteenth Court of Appeals
____________

NO. 14-02-00399-CR
____________

TINA LYLES D/B/A ACE BONDING CO., Appellant

V.

THE STATE OF TEXAS, Appellee

On
Appeal from the 240th District Court
Fort
Bend County, Texas
Trial
Court Cause No. 103367

M E M O R A N D U M  O P I N I O N
A written request to withdraw the notice of appeal,
personally signed by appellant, has been filed with this Court.  See Tex.
R. App. P. 42.2.  Because this
Court has not delivered an opinion, we grant appellant=s request.
Accordingly, we order the appeal dismissed.  We direct the Clerk of the Court to issue the
mandate of the Court immediately.
PER CURIAM
Judgment rendered
and Opinion filed May 30, 2002.
Panel consists of
Justices Hudson, Fowler, and Edelman.
Do not publish ‑
Tex. R. App. P. 47.3(b).