                                                        [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                  FILED
                         ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                             October 25, 2005
                               No. 05-11297
                                                            THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                      D. C. Docket No. 01-00082-TP-PAS

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

ALFREDO ARIAS, JR.,

                                                            Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                              (October 25, 2005)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Alfredo Arias, Jr., appeals a 51-month term of supervised release that was
imposed following a revocation of his previous term of supervised release. On

appeal, Arias argues that the district court erred when it sentenced him to 9 months

of incarceration and 51 months of supervised release without granting credit for the

time Arias had previously spent at a community corrections center (“CCC”), as a

result of prior modifications to his pre-revocation term of supervised release.

       Arias failed to challenge the calculation of his post-revocation supervision

before the district court, and we therefore review that court’s calculation only for

plain error. See United States v. Rodriguez, 398 F.3d 1291, 1297-1298 (11th Cir.),

cert. denied, __ U.S. __, 125 S. Ct. 2935, 162 L. Ed. 2d 866 (2005). We may not

correct an error that a defendant failed to raise before the district court unless the

district court: (1) committed error, (2) that was plain, and (3) that affected

substantial rights. Id. at 1298. If these criteria are met, we may, in our discretion,

correct the plain error if it “‘seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.’” Id. (quoting United States v. Cotton, 535 U.S.

625, 631, 122 S. Ct. 1781, 1785, 152 L. Ed. 2d. 860 (2002)). Of course, when “the

explicit language of a statute or rule does not specifically resolve an issue, there

can be no plain error where there is no precedent from the Supreme Court or this

Court directly resolving it.” United States v. Lejarde-Rada, 319 F.3d 1288, 1291

(11th Cir. 2003) (per curiam).

                                             2
       Arias invokes 18 U.S.C. § 3583(e)(3) and (h) in support of his position.

Subsection (e)(3) provides that, upon revocation, a court may:

       require the defendant to serve in prison all or part of the term of
       supervised release authorized by statute for the offense that resulted in
       such term of supervised release without credit for time previously
       served on postrelease supervision, if the court . . . finds by a
       preponderance of the evidence that the defendant violated a condition
       of supervised release, except that a defendant whose term is revoked
       under this paragraph may not be required to serve on any such
       revocation more than 5 years in prison if the offense that resulted in
       the term of supervised release is a class A felony . . . .

18 U.S.C. § 3583(e)(3).1 Subsection (h) permits a court to include an additional

term of supervised release as part of a sentence imposed upon revocation and

establishes the maximum length of such term:

       When a term of supervised release is revoked and the defendant is
       required to serve a term of imprisonment, the court may include a
       requirement that the defendant be placed on a term of supervised
       release after imprisonment. The length of such a term of supervised
       release shall not exceed the term of supervised release authorized by
       statute for the offense that resulted in the original term of supervised
       release, less any term of imprisonment that was imposed upon
       revocation of supervised release.

18 U.S.C. § 3583(h). Arias concedes that § 3583(h) does not require a district

court “to give credit for time previously served on supervised release when it

       1
         Arias’s convictions for possession with intent to distribute cocaine and distribution of
cocaine, both in violation of § 841(a)(1), were Class A felonies, as the maximum penalty for each
was life imprisonment. See 21 U.S.C. § 841; 18 U.S.C. § 3559. Accordingly, the term of supervised
released authorized by statute was not more than five years. See 18 U.S.C. § 3583(b)(1).

                                               3
revokes the initial term of supervised release and orders an additional prison term

followed by a new term of supervised release.” United States v. Pla, 345 F.3d

1312, 1314 (11th Cir. 2003) (per curiam).2 Indeed, “the only credit that subsection

(h) clearly enumerates is time served in prison [after] revocation of supervised

release.” Id. However, Arias argues, the time he spent in the CCC was tantamount

to imprisonment, and should therefore be credited against his post-revocation

sentence. In other words, Arias contends that district court’s “modification” of the

original terms of Arias’s supervised release, to include periods of time at the CCC,

was a de facto revocation–and the time spent at the CCC was “imprisonment” that

must therefore be credited against his current post-revocation sentence.

       Assuming arguendo that § 3583(h) does, as Arias claims, entitle a defendant

to credit for incarceration served on all prior revocations of supervised release, it is

nevertheless clear that the district court did not commit plain error in calculating

Arias’s post-revocation sentence, for neither the statutory language nor controlling

precedent establish that time spent in a CCC on supervised release amounts to

“imprisonment” for purposes of § 3583(h). Arias argues that because the Bureau

of Prisons sometimes places a federal prisoner in a CCC or halfway house for the

       2
         In fact, this Court reached the same conclusion even when considering the language of
§ 3583(e)(3) separate and apart from the enactment of § 3583(h). See United States v. Gresham, 325
F.3d 1262, 1265-68 (11th Cir. 2003).

                                                4
final part of the prisoner’s term of incarceration, see 18 U.S.C. § 3624(c), the

requirement that Arias spend time at a CCC on supervised release should be

considered imprisonment. This argument is not persuasive, for we have held that

in the context of a probationary sentence, “residence in a halfway house is not

tantamount to imprisonment.” United States v. Chavez, 204 F.3d 1305, 1315

(11th Cir. 2000); see 18 U.S.C. § 3563(b)(11) .3

       Arias also argues that the statutory language governing modification of the

conditions of supervised release does not permit a district court to require that he

reside at a CCC without effecting a revocation. Section 3583(e)(2) authorizes a

district court to “modify . . . the conditions of supervised release . . . pursuant to the

provisions of the Federal Rules of Criminal Procedure relating to the modification

of probation and the provisions applicable to the initial setting of the terms and

conditions of post-release supervision.” 18 U.S.C. § 3583(e)(2). Under § 3583(d)

the court may, subject to certain limitations, order as a condition of supervised

release “any condition set forth as a discretionary condition of probation in section

3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition it

considers to be appropriate.” 18 U.S.C. § 3583(d). Arias emphasizes that

subsection (b)(11), which allows the court to require residence at a CCC, is

       3
         We note that Arias does not contend that the circumstances of his residence at the CCC
were actually similar to those of confinement in a jail or prison.

                                              5
excluded as a possibility because it is not enumerated in § 3583(d). At least four

circuit courts of appeals, however, have rejected this argument, finding that the

omission of subsection (b)(11) was due to a clerical error–and that district courts

retain statutory authority to impose confinement in a CCC as a condition of

supervised release. See United States v. Del Barrio, 5th Cir. 2005, __ F.3d __,

(No. 04-40835, Sept. 21, 2005); United States v. D’Amario, 412 F.3d 253, 256

(1st Cir.) (per curiam), cert. denied, __ U.S. __, __ S. Ct. __, __ L. Ed. 2d __

(2005); United States v. Griner, 358 F.3d 979, 982 (8th Cir. 2004); United States v.

Bahe, 201 F.3d 1124, 1136 (9th Cir. 2000). Thus, the district court did not effect a

revocation by modifying the conditions of Arias’s original term of supervised

release to include residence at a CCC.

       Finally, Arias argues that the United States Sentencing Guidelines (the

“Guidelines”) support his position, because they provide that a term of

imprisonment ordered upon the revocation of supervised release can, in certain

circumstances, be satisfied by a term of supervised release that includes

community confinement or home detention. See U.S.S.G. § 7B1.3.4 As the

Government points out, however, Arias’s argument is not compelling because the

Guidelines also permit residence in a CCC to be imposed as a condition of

       4
         Arias also notes that the Guidelines sometimes permit defendants to serve portions of their
terms of imprisonment in a CCC. See U.S.S.G. § 5C1.1.

                                                 6
supervised release. See U.S.S.G. §§ 5D1.3(e)(1) and 5F1.1.

      In light of the foregoing, and in the absence of controlling authority to the

contrary, we conclude that the district court did not commit plain error by

declining to credit the time Arias spent at a CCC (due to modifications of the

conditions of his supervised release) against his sentence upon revocation.

AFFIRMED.

                                          7


158 Ariz. 380 (1988)
762 P.2d 1334
Isabel HARRIS, widow, Plaintiff-Appellant-Cross Appellee, and Jack Colaric, Non-Party Appellant,
v.
RESERVE LIFE INSURANCE COMPANY, a Texas corporation, Defendant-Appellee-Cross Appellant.
No. 1 CA-CIV 9364.
Court of Appeals of Arizona, Division 1, Department D.
May 17, 1988.
Review Denied November 8, 1988.
*381 Ely, Bettini & Ulman by Herbert L. Ely and Eileen S. Willett, Phoenix, for plaintiff-appellant-cross appellee.
Gene G. Gulinson, Phoenix, for defendant-appellee-cross appellant.
OPINION
FROEB, Judge.
Plaintiff-Appellant-Cross Appellee Isabel Harris and her attorney, Jack Colaric (hereinafter "Harris" and "Colaric"), appeal from a judgment awarding Defendant-Appellee-Cross Appellant Reserve Life Insurance Company (hereinafter "Reserve") attorney's fees of $17,840 ($4,460 against Harris and $13,380 against Colaric) pursuant to A.R.S. § 12-349(A) and (B) and costs of $1,470.39. Reserve cross appeals from the trial court's refusal to grant it attorney's fees against Harris under rule 41(a)(2), Arizona Rules of Civil Procedure, and A.R.S. § 12-341.01(A) and (B). Although Colaric was not a named party in the trial court proceedings, he appears in this appeal as a nonparty appellant in order to challenge the judgment for attorney's fees entered against him.
FACTS AND PROCEDURAL HISTORY
On January 3, 1985, Harris instituted a breach of contract action against Reserve as the beneficiary of her deceased husband's life insurance policy to secure payment of a $25,000 death benefit. The complaint was served upon Reserve on August 28, 1985, and discovery ensued. On October 23, 1985, Reserve filed an answer denying liability on the policy. Further, Reserve affirmatively pled that no valid contract of insurance had ever been in force because the deceased had made material misrepresentations regarding prior medical treatment on his application for insurance.
*382 On November 20, 1985, Colaric interviewed Dr. Carolyn Gerster, and learned, contrary to the representations made by the deceased on his insurance application, that Dr. Gerster had diagnosed and treated the deceased for a liver condition within a five-year period prior to his death. Dr. Gerster confirmed, in her deposition testimony on January 29, 1986, that she had treated the deceased for various medical problems. Based on this testimony, Reserve filed a motion for summary judgment. On March 19, 1986, the day Harris' response to Reserve's motion for summary judgment was due, Colaric moved, pursuant to rule 41, Arizona Rules of Civil Procedure, to voluntarily dismiss the complaint without prejudice. The trial court granted the voluntary dismissal and awarded Reserve attorney's fees and costs. This appeal followed.
PROPRIETY OF THE A.R.S. § 12-349 ATTORNEY'S FEES AWARD
The version of A.R.S. § 12-349 in effect at the time Harris commenced this action provided in pertinent part as follows:
A. Except as otherwise provided by and not inconsistent with another statute, in any civil action commenced or appealed in a court of record in this state, the court shall assess reasonable attorney fees against an attorney or party, ... if the attorney or party does any of the following:
(1) Brings or defends a claim without substantial justification.
....
B. The court may allocate the payment of attorney fees among the offending attorneys and parties, jointly or severally, and may assess separate amounts against an offending attorney or party.
C. Attorney fees shall not be assessed if after filing an action a voluntary dismissal is filed for any claim or defense within a reasonable time after the attorney or party filing the dismissal knew or reasonably should have known that the claim or defense was without substantial justification.
....
F. In this section, `without substantial justification' means that the claim or defense constitutes harassment, is groundless and not made in good faith.
A.R.S. § 12-350 requires the court to set forth the specific reasons for any attorney fee award pursuant to A.R.S. § 12-349, and enumerates the following eight factors the court may consider, if relevant, in entering a § 12-349 award:
1. The extent of any effort made to determine the validity of a claim before the claim was asserted.
2. The extent of any effort made after the commencement of an action to reduce the number of claims or defenses being asserted or to dismiss claims or defenses found not to be valid.
3. The availability of facts to assist a party in determining the validity of a claim or defense.
4. The relative financial positions of the parties involved.
5. Whether the action was prosecuted or defended, in whole or in part, in bad faith.
6. Whether issues of fact determinative of the validity of a party's claim or defense were reasonably in conflict.
7. The extent to which the party prevailed with respect to the amount and number of claims in controversy.
8. The amount and conditions of any offer of judgment or settlement as related to the amount and condition of the ultimate relief granted by the court.
Harris and Colaric argue that the attorney's fees award pursuant to A.R.S. § 12-349 was in error because Harris' claim was not initially brought without substantial justification; and, upon later learning that it lacked substantial justification, Harris filed a voluntary dismissal within a reasonable time.
In awarding attorney's fees to Reserve, the trial judge expressly found that Harris' claim was brought without substantial justification. No other findings were made. In reviewing the trial court's judgment, we must view the evidence in a manner most favorable to sustaining it and if, in so doing, *383 it is necessary to resolve conflicts in the evidence, we must accept as fact that evidence which supports the judgment. Davis v. Tucson Arizona Boys Choir Society, 137 Ariz. 228, 669 P.2d 1005 (App. 1983). Therefore, in the present case, we must resolve all conflicts in favor of Reserve and affirm the trial court's award of attorney's fees pursuant to A.R.S. § 12-349 if there is any evidence to support the judgment. We note in passing that this case does not involve a consideration of rule 11, Arizona Rules of Civil Procedure, since it was not urged before this court or the trial court. Rule 11, of course, deals with some of the same issues as A.R.S. § 12-349.
In conclusion we hold that the trial court had sufficient evidence upon which to determine that plaintiff's claim was brought without substantial justification. When Colaric filed suit, he had in his possession Ralph Harris' medical records from Dr. Gerster showing probable fatty metamorphosis of the liver in 1974 and in 1976. Therefore, he knew or should have known at the time he filed suit that the application for insurance falsely stated that the only consultation or examination by any physician within the previous five years was a general physical conducted by Dr. Gerster in February of 1977. He also knew that the death certificate showed that Ralph Harris had an "alcoholic liver." Thus, the trial court did not abuse its discretion in finding that Colaric filed suit when he knew, or should have known, that the claim was unjustified. Colaric's argument that he had a reasonable basis for filing suit because he believed Reserve had to prove an actual intent on the decedent's part to deceive the company in order for the company to avoid its obligations under the policy is contrary to law and consequently unjustified. See American Nat'l Ins. Co. v. Caldwell, 70 Ariz. 78, 79, 216 P.2d 413, 414 (1950).
While the chronology of events was not disputed in the trial court, the inferences to be drawn from those events were disputed. It is for the trial court, not this court, to resolve those conflicts. A decision is
discretionary because it is based on an assessment of conflicting procedural, factual or equitable considerations which vary from case to case and which can be better determined or resolved by the trial judge, who has a more immediate grasp of all the facts of the case, an opportunity to see the parties, lawyers and witnesses, and who can better assess the impact of what occurs before him. Where a decision is made on that basis, it is truly discretionary and we will not substitute our judgment for that of the trial judge; we will not second guess. Where, however, the facts or inferences from them are not in dispute and where there are few or no conflicting procedural, factual or equitable considerations, the resolution of the question is one of law or logic. Then it is our final responsibility to determine law and policy and it becomes our duty to `look over the shoulder' of the trial judge and, if appropriate, substitute our judgment for his or hers.
State v. Chapple, 135 Ariz. 281, 297, n. 18, 660 P.2d 1208, 1224, n. 18 (1983) (citations omitted). If the trial court has rendered the correct decision for any reason apparent in the record, we will affirm. City of Phoenix v. Geyler, 144 Ariz. 323, 697 P.2d 1073 (1985).
The trial court considered the factors set forth in A.R.S. § 12-350 and determined that an award of attorney's fees was proper pursuant to A.R.S. § 12-349. The court determined that the true facts were always available to Colaric, enabling him to determine the validity of the claim, and that Harris herself was aware of her husband's condition. The relative financial position of the parties involved was considered as well, as is evidenced by the trial court's allocation of the bulk of the attorney's fees against Colaric rather than Harris. Further, Colaric's disregard of the misrepresentations made by the deceased on his application for insurance supports an inference of bad faith. Additionally, even if the medical records in Colaric's possession at the time he filed suit did not reveal that Dr. Gerster had actually informed Ralph Harris of his liver condition, Dr. Gerster testified that Harris herself was aware of this *384 fact. Thus the trial court's resolution of this conflicting factual issue in Reserve's favor is well supported. Finally, although the dismissal was without prejudice, Harris obtained none of the relief she sought in her complaint. We conclude that the trial court properly considered the factors set forth in A.R.S. § 12-350 in determining that Harris' claim was brought without substantial justification and that the facts amply support this conclusion.
The inquiry does not end here, however, for even if a claim is brought without substantial justification, attorney's fees will not be assessed pursuant to A.R.S. § 12-349 if the party voluntarily dismisses his claim within a reasonable time after learning the claim is unjustified. A.R.S. § 12-349(C). Because the determination of what is reasonable varies with the circumstances, we believe this determination falls within the exercise of the trial court's sound discretion. We find no abuse of discretion in the determination that a four-month delay in filing the motion to dismiss was unreasonable, particularly in light of the fact that Colaric did not file the motion until time to respond to Reserve's motion for summary judgment was about to expire and then vacillated in his decision to dismiss even after his motion had been filed. Colaric offered no explanation as to why it took Harris from February 24, 1986, the date he received a copy of Dr. Gerster's deposition, until March 18, 1986, to read the deposition and agree to dismiss her complaint. Such conduct could reasonably be construed to be a lack of diligence, and, in fact, unreasonable under the circumstances, particularly since no new facts were developed between Colaric's conversation with Dr. Gerster in November of 1985 and the final decision to dismiss in late March of 1986.
Harris and Colaric further argue that even if the award of attorney's fees under § 12-349 was proper, the amount awarded was exorbitant and unreasonable and, therefore, should be reduced. They argue particularly about the additional $8,620 in fees incurred after Colaric allegedly informed Reserve on January 29, 1986, that he intended to recommend the case be dismissed. These fees were apparently incurred in preparation of the motion for summary judgment.
The determination of whether the amount of attorney's fees awarded is reasonable is a matter peculiarly within the discretion of the trial court, Woliansky v. Miller, 146 Ariz. 170, 704 P.2d 811 (App. 1985), and will not be disturbed absent a showing of abuse of that discretion. A trial court abuses its discretion when no reasonable basis exists in the record from which the trial judge could award attorney's fees. Associated Indemnity Corporation v. Warner, 143 Ariz. 567, 694 P.2d 1181 (1985). Even fees in excess of the amount in dispute are not per se unreasonable. Wagner v. Casteel, 136 Ariz. 18, 663 P.2d 1020 (App. 1983).
Reserve submitted an itemized bill detailing the activity of its counsel in defending Reserve. Harris and Colaric offer no evidence of abuse of discretion other than the amount of the award. Such does not support the finding that the trial court abused its discretion. The itemized statement provided by Reserve provides a reasonable basis on which the trial court could award attorney's fees in the amount that it did.
This court will not consider issues and theories not presented in the trial court. Richter v. Dairy Queen of Southern Arizona, Inc., 131 Ariz. 595, 643 P.2d 508 (App. 1982). Thus, we do not consider whether A.R.S. § 12-349 should be applied when an alternate statute, A.R.S. § 12-341.01, also provides for attorney's fees in this situation.
PROPRIETY OF AWARD OF COSTS
The judgment awarded Reserve costs in the amount of $1,479.39. The judgment is silent as to the basis of this award. Harris argues that the award of costs is improper under A.R.S. § 12-341 because Reserve was not the successful party. Reserve argues that costs are appropriate in the context of a dismissal, and also under the court's power to impose terms and conditions *385 upon a voluntary dismissal under rule 41.
We have held that when a plaintiff's complaint is dismissed because of plaintiff's failure to prosecute, the defendant may be considered the successful party for purposes of recovering costs pursuant to A.R.S. § 12-341. The fact that the action is dismissed without prejudice and that plaintiff can refile is not relevant. Mark Lighting Fixture Company, Inc. v. General Electric Supply Company, 155 Ariz. 65, 745 P.2d 123, vacated on other grounds, 155 Ariz. 27, 745 P.2d 85 (1987). We find the record supports the award of costs to Reserve.
RESERVE'S CROSS APPEAL
Because we have found the trial court's imposition of costs and attorney's fees proper under A.R.S. § 12-341 and § 12-349, it is unnecessary to consider Reserve's argument that it was also entitled to an award of fees under A.R.S. § 12-341.01 and rule 41(a)(2).
ATTORNEY'S FEES AND COSTS ON APPEAL
Both parties have requested attorney's fees and costs on appeal. We deny Harris' and Colaric's request and grant Reserve's request pursuant to A.R.S. § 12-341.01 and § 12-342 in an amount to be determined pursuant to rule 21(c), Arizona Rules of Civil Appellate Procedure.
GRANT and CONTRERAS, JJ., concur.


TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-94-00366-CR

Allan Duane Merrick, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF 264TH COUNTY, BELL JUDICIAL DISTRICT

NO. 43,577, HONORABLE JOE CARROLL, JUDGE PRESIDING

PER CURIAM

	This is an appeal from the judgment of conviction for aggravated robbery.  Appellant has
filed an amended motion to withdraw the appeal.  No decision of this Court has been delivered.
The amended motion is granted and the appeal is dismissed.  The original motion to withdraw the
appeal is dismissed.  See Tex. R. App. P. 59(b).

Before Justices Powers, Kidd and B. A. Smith

Appeal Dismissed on Appellant's Motion

Filed:  February 8, 1995

Do Not Publish


966 P.2d 909 (1998)
90 Wash.App. 448
Everett L. RUSE, Appellant,
v.
DEPT. OF LABOR AND INDUSTRIES, Respondent.
No. 15911-6-III.
Court of Appeals of Washington, Division 3, Panel Three.
February 5, 1998.
Publication Ordered March 23, 1998.
*910 Jeffry K. Finer, Finer & Pugsley, Spokane, for Appellant.
Sheryl L. Gordon, Asst. Atty. Gen., Spokane, for Respondent.
SCHULTHEIS, C.J.
Everett L. Ruse, at all times relevant to this appeal, suffered from degenerative disc disease and arthritis. He worked for nearly 30 years in the cement industry as a laborer. Mr. Ruse asked for a layoff from his employer in 1989 because of severe back pain. He was diagnosed with his current medical condition by Dr. William Shanks, a Board Certified Orthopedic Surgeon, in January 1990. Mr. Ruse filed for and was denied workers' compensation benefits from the Department of Labor and Industries. Mr. Ruse appeals the trial court's affirmation of the Board of Industrial Insurance Appeals' decision that his medical condition is not an occupational disease as contemplated by RCW 51.08.140. In addition, we are asked to determine whether it is an abuse of discretion to apply the "attending physician doctrine" set forth in Hamilton v. Department of Labor & Indus., 111 Wash.2d 569, 761 P.2d 618 (1988) to a physician who neither diagnosed nor treated the worker for the condition ultimately diagnosed.
Mr. Ruse was born December 6, 1934. He has an eighth grade education. He has worked with his back nearly his entire life. His duties as a concrete laborer included pouring and finishing concrete as well as handling the completed concrete products. The parties agree this is moderately heavy labor.
Mr. Ruse has a long history of back problems that began when he was involved in an automobile accident as a young man. From 1981 to 1989 he sought medical treatment for his low back pain from his family physician, Dr. David Gilman, who, on several occasions, advised Mr. Ruse he did not have a medical problem that would respond to treatment. X-rays taken in 1986 of Mr. Ruse's lower back were normal, evidencing no sign of arthritis. However, in Mr. Ruse's opinion, his back pain continued to worsen with time.
Mr. Ruse took a layoff from his employer on August 17, 1989, because he could no longer work due to his low back pain. Dr. Gilman did not support Mr. Ruse's layoff, stating there was nothing medically that could be done for Mr. Ruse and that he should be back at work. Mr. Ruse last sought treatment for his back pain from Dr. Gilman late in 1989.
Mr. Ruse eventually sought relief from a chiropractor who referred him to Dr. William M. Shanks, a specialist certified in the field of orthopedic surgery. Dr. Shanks examined Mr. Ruse only once on January 23, 1990. As a result of the history of back problems and the medical examination, Dr. Shanks ordered a magnetic resonance image (MRI) of Mr. Ruse's back. The cause of the pain was diagnosed as moderate degenerative arthritis and degenerative disc disease in the lumbar spine most prominent in the L3-4 region. Dr. Shanks determined Mr. Ruse was not a surgery candidate and did not recommend any further medical treatment. It was Dr. Shanks's opinion that Mr. Ruse should "limit his activities." Dr. Shanks did not become Mr. Ruse's treating physician.
November 9, 1990, the Department received an application for benefits filed by Mr. Ruse alleging an injury or development of a disease on or about August 17, 1989. November 15, the Department issued an order rejecting the claim.
Mr. Ruse filed a timely protest of the Department's order. October 29, 1993, the Department issued an order setting aside the November 15, 1990, Department order. The new Department order rejected Mr. Ruse's initial claim in part because Mr. Ruse's condition was not an occupational disease as contemplated by RCW 51.08.140. This order was also timely protested by Mr. Ruse. January 31, 1995, an Industrial Appeals Judge affirmed the Department's prior ruling.
March 29, 1995, the Board of Industrial Insurance Appeals received a timely notice of appeal of the Industrial Appeals Judge's ruling. April 17, the Board issued an order adopting the January 31, 1995, Proposed Decision and Order of the Industrial Appeals Judge. Mr. Ruse timely appealed the Board's ruling to the Spokane County Superior *911 Court, which, in a memorandum decision, affirmed the Board's ruling.
In the de novo review of a Board decision, a superior court examines only the evidence that was in the record before the Board. RCW 51.52.115; Garrett Freightlines, Inc. v. Department of Labor & Indus., 45 Wash. App. 335, 339, 725 P.2d 463 (1986). While the Board's decision is not binding on the trial court the findings and conclusions are presumed prima facie correct and the burden of proof is on Mr. Ruse to show by a preponderance of the evidence the Board's decision is incorrect. RCW 51.52.115; Ravsten v. Department of Labor & Indus., 108 Wash.2d 143, 146, 736 P.2d 265 (1987).
We review the trial court's dismissal of Mr. Ruse's claim for abuse of discretion. Elliott v. Kundahl, 89 Wash.2d 639, 642, 574 P.2d 732 (1978). Appellate review is limited to examination of the record to see whether substantial evidence supports the trial court's findings and whether its conclusions flow from the findings. RCW 51.52.140; Young v. Department of Labor & Indus., 81 Wash. App. 123, 128, 913 P.2d 402, review denied, 130 Wash.2d 1009, 928 P.2d 414 (1996); Garrett, 45 Wash.App. at 339, 725 P.2d 463. We find there was no abuse of discretion and affirm the trial court's findings and conclusions.
The issue Mr. Ruse brought to the trial court was whether or not he was disabled by an occupational disease as defined by RCW 51.08.140.[1] It is Mr. Ruse who has the burden of producing evidence which supports his claim. As stated 60 years ago in Kirk v. Department of Labor & Indus., 192 Wash. 671, 674, 74 P.2d 227 (1937) (quoting Harris v. Oklahoma Natural Gas Co., 91 Okla. 39, 216 P. 116 (1923)):
"Workmen's Compensation Acts are remedial in character, and should receive a liberal construction in order to effectuate their purposes and objects, but they should not be amended by judicial construction upon an attenuated theory of inclusion. Persons entitled to the benefits of the act should be favored by a liberal interpretation of its provisions, but for this very reason they should be held to strict proof of their title as beneficiaries."
According to RCW 51.08.140, a compensable occupational disease must arise both naturally and proximately from employment. In addition, in the context of occupational disease, the Supreme Court requires that the disabling conditions "c[o]me about as a matter of course as a natural consequence or incident of distinctive conditions of his or her particular employment." Dennis v. Department of Labor & Indus., 109 Wash.2d 467, 481, 745 P.2d 1295 (1987). Mr. Ruse must show his disability was a natural incident of the distinctive conditions of his particular employment. Additionally, those distinct conditions must be proven to be the proximate cause of his disability. Id. at 481, 745 P.2d 1295.
A worker who alleges an occupational disease is required to present competent medical evidence that the disability resulted from distinctive work conditions. The question of causal relation must be removed "from the field of speculation and surmise." Zipp v. Seattle Sch. Dist. No. 1, 36 Wash. App. 598, 601, 676 P.2d 538, review denied, 101 Wash.2d 1023 (1984). Mr. Ruse contends the distinctive condition which caused his disability was heavy labor or "hard work generally." Hard work and heavy labor are conditions found in numerous types of employment and of life in general. These conditions do not satisfy the statutory mandate that "distinctive" conditions of employment proximately caused Mr. Ruse's disability.
The connection between the work and the disability must be made through the use of medical evidence showing more probably than not, the condition would not have occurred but for the conditions of employment. Dennis, 109 Wash.2d at 477, 745 P.2d 1295 (citing Simpson Logging Co. v. Department of Labor & Indus., 32 Wash.2d 472, 479, 202 P.2d 448 (1949)). The medical testimony before the Board did not establish that hard *912 work or long-term heavy labor proximately caused Mr. Ruse's medical condition. Dr. Shanks's testimony was nebulous on the issue. He testified differently on direct and cross-examination at his deposition. On direct examination, Dr. Shanks testified that long-term heavy labor would be an aggravating factor of degenerative disc disease and arthritis. On cross-examination he testified he agreed with his October 27, 1993, letter to the Department in which he wrote: "His type of work was relatively difficult, but would not particularly cause arthritis on a more probable than not basis." However, when read in its entirety, Dr. Shanks's testimony supports his opinion that Mr. Ruse's disability was not proximately caused by his work.
Mr. Ruse next argues that Dr. Gilman's opinion should not have been given special consideration by the trial court since Dr. Gilman did not diagnose nor treat Mr. Ruse for degenerative arthritis and disc disease. Thus, under Hamilton v. Department of Labor & Indus., 111 Wash.2d 569, 571, 761 P.2d 618 (1988), Dr. Gilman cannot be considered the attending physician whose testimony can be given special consideration. He was Mr. Ruse's primary physician from 1981 to 1989. During this time he diagnosed and treated Mr. Ruse's various medical needs, including low back pain. As such, Dr. Gilman knew Mr. Ruse, and his medical and family histories. This is the physician-patient relationship contemplated by Hamilton. In contrast, Dr. Shanks's opinion was based on a one-time examination of Mr. Ruse.
The trial court accepted Dr. Gilman's opinion that Mr. Ruse's back complaints were age related. Because Dr. Gilman had provided treatment to Mr. Ruse for many years prior to the eventual diagnosis of arthritis by another physician, the trial court determined that Dr. Gilman's opinion was entitled to enhanced consideration. While this court may disagree that Dr. Gilman's opinion is entitled to enhanced consideration it is not an abuse of discretion for the trial court to do so as the factual findings which set forth the basis of the ruling are supported by substantial evidence in the record. We hold that the trial court properly considered Dr. Gilman's testimony.
The trial court determined that Mr. Ruse's medical condition is not an occupational disease as contemplated by RCW 51.08.140 based on all the evidence presented after a de novo review. It properly interpreted and applied the law; thus, the trial court's decision is affirmed.
SWEENEY, J., and BROWN, J., concur.
NOTES
[1]  RCW 51.08.140 defines occupational disease as: "such disease or infection as arises naturally and proximately out of employment under the mandatory or elective adoption provisions of this title."


[Cite as Berea v. Collins, 2014-Ohio-3822.]

                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA

                               JOURNAL ENTRY AND OPINION
                                       No. 100836

                                       CITY OF BEREA
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                  JOSHUA A. COLLINS
                                                       DEFENDANT-APPELLANT

                                    JUDGMENT:
                              REVERSED AND REMANDED

                                       Criminal Appeal from the
                                        Berea Municipal Court
                                       Case No. 12 TRC 00242

        BEFORE: McCormack, J., Kilbane, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: September 4, 2014
ATTORNEY FOR APPELLANT

Joseph F. Salzgeber
Foth & Foth Co., L.P.A.
11221 Pearl Road
Strongsville, OH 44136

ATTORNEY FOR APPELLEE

James N. Walters
Prosecutor
City of Berea
11 Berea Commons
Berea, OH 44017
TIM McCORMACK, J.:

       {¶1} At one o’clock in the morning, on a snowy January 16, 2012, in the city of

Berea, two Berea police officers forced open the door of a residence on Bridge Street,

without a warrant, in order to arrest Joshua A. Collins for an alleged misdemeanor traffic

violation. Mr. Collins argues before this court that the Fourth Amendment to the United

States Constitution and its companion language in the Ohio Constitution guarantee that he

was entitled to be “free from unreasonable searches and seizures” in his home and that the

police action of that night was inherently unconstitutional.

       {¶2} The city of Berea, while neither appearing nor filing a brief before the

appellate court, argued before the trial court that the police officers were in “hot pursuit”

of Mr. Collins and were within their right to force the door open to arrest him. After a

thorough review of what has come to be called “exigent circumstances,” which translates

into possible compelling reasons or exceptional circumstances that would have justified

this warrantless forced entry, we do not find either such compelling reasons or

circumstances that support the exercise of such an invasive means of arrest. Neither a

true “hot pursuit” nor truly significant exigent circumstances supported this forced entry

into an occupied dwelling. We find that our Constitutions contemplated just such events

as occurred that night in Berea, and their protections were and are meant to balance the

assurances of security in one’s private dwelling against the urgency of more invasive

police procedures.
      {¶3} Finding merit to the appeal, we reverse the judgment of the Berea Municipal

Court that denied Collins’s motion to suppress. The matter is reversed and remanded.

                      Substantive Facts and Procedural History

      {¶4} On January 16, 2012, Collins was charged by the city of Berea with

operating a vehicle under the influence (“OVI”), having a prohibited blood alcohol level,

and speeding.   He filed a motion to suppress evidence obtained by the police as a result

of a warrantless entry into his home. The parties stipulated to Ptl. Ted Makrinos’s

written statement regarding the incident.   He recounted the incident, which occurred

around 1:00 a.m. as follows:

      I was going west on E. Bridge St. when a vehicle (the only one on the road)
      started travelling [sic] east on Bridge St. at a high rate of speed. My radar
      indicated that the vehicle was travelling [sic] at 50 mph on a 25 mph zone.
      I stopped on the road and was waiting for the car to pass me by so I can turn
      around and pull it over. The vehicle started slowing down and instead of
      passing by, turned left in to a drive way two to three drives in front of me.
      I pulled in the drive way behind the car (189 E. Bridge) and as I was ready
      to get out, the driver a white male got out went to the passenger side took
      out what appeared to a [sic] guitar case and some other items and started
      walking towards the police car. I stated to the driver I wanted to talk to
      him because he was speeding and he said ok let me put my stuff by the steps
      so they are not on the snow. When he said that I noticed that he had a
      slurred speech and he also appeared to be under the influence.
.
      I ran the plate on my MDT and as I got out of the car, the male ran up the
      steps and locked the door behind him. I knocked on the door several times
      and advised the male to open the door. The male stated I don’t have to
      open the door for you and you can go and get a warrant. At that time I
      advised dispatch of the situation and Sgt. Grecol arrived on the scene.
      Again I asked the male to open the door several times and I advised him if
      he did not I would force the door and enter the premises. Sgt. Grecol also
      advised the male to open the door or we will force it in. The male refused
      again. I state to the male I will count from 5 to 1 and then I will force the
      door in. I started 5, 4, and when I got to 3 it appeared that the male
        barricaded the door with his body. When I got to one I forced the door
        open and the male was behind it. As Sgt. Grecol and I were giving him
        verbal commands and were trying to place the cuffs on him, a female
        (Aleece E. Roach) came from inside the house and I asked her why she did
        not open the door. She stated he told me not to open the door. The male
        identified as Mr. Joshua A. Collins was arrested and placed in the back of
        1661. * * *

        {¶5} The officers then took Collins to the Berea police station for a field sobriety

test.   He   failed the test and his breath alcohol concentration measured 0.189, exceeding

the legal limit.

        {¶6} Following the suppression hearing, the Berea Municipal Court denied

Collins’s motion. Collins then pled no contest to the OVI charge, and the prosecutor

dismissed the remaining charges. The court found him guilty of OVI and sentenced him

to a fine of $600 plus court costs and a jail term of three days, with the option of

participating in a 72-hour program and one year of basic probation in lieu of the jail term.

 The court stayed the execution of the sentence pending appeal.1

        {¶7} Collins raises one assignment of error on appeal.              He argues that the trial

court erred in denying his motion to suppress. The issue confronting us is whether the

police officers’ warrantless forced home entry to effect the arrest of an individual

suspected of OVI offends the Fourth Amendment under the totality of the circumstances

existing in this case.

        The original appeal, Berea v. Collins, 8th Dist. Cuyahoga No. 99406, 2013-Ohio-4191, was
        1

dismissed by this court for lack of a final appealable order because the trial judge failed to adopt the
sentence imposed by the magistrate.
        {¶8} An appellate review of a motion to suppress presents a mixed question of

law and fact.   State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶

8.    We accept the trial court’s findings of fact if they are supported by competent,

credible evidence. State v. Preztak, 181 Ohio App.3d 106, 2009-Ohio-621, 907 N.E.2d

1254, ¶ 22 (8th Dist.).   Once we accept the factual findings as true, however, “‘we must

independently determine, as a matter of law and without deference to the trial court’s

conclusion, whether the trial court met the applicable legal standard.’” Id., quoting State

v. Lloyd, 126 Ohio App.3d 95, 709 N.E.2d 913 (7th Dist.1998).

                             Warrantless Entry Into a Home

        {¶9} The Fourth Amendment to the United States Constitution and Article I,

Section 14 of the Ohio Constitution guarantee the right of the people to be free from

unreasonable searches and seizures.     See State v. Orr, 91 Ohio St.3d 389, 391, 745

N.E.2d 1036 (2001). The Fourth Amendment states,“The right of the people to be

secure in their person, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but upon probable cause * *

*.”      Evidence obtained from a search or seizure in violation of            the Fourth

Amendment is excluded.      Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d

1081 (1961).

        {¶10} This case involves the police officers’ warrantless forced entry into a home

to effect a misdemeanor arrest.   The “physical entry of the home is the chief evil against

which the wording of the Fourth Amendment is directed.”          United States v. United
States Dist. Court for the E. Dist. of Michigan, 407 U.S. 297, 313, 92 S.Ct. 2125, 32

L.Ed.2d 752 (1972).     Absent exigent circumstances, a warrantless search or seizure

effected in a home is per se unreasonable.     State v. Freeman, 8th Dist. Cuyahoga No.

95608, 2011-Ohio-5651, ¶ 16, citing Payton v. New York, 445 U.S. 573, 590, 100 S.Ct.

1371, 63 L.Ed.2d 639 (1980).     The idea behind the concept of exigent circumstances is

that a delay could enable the suspect to escape, creating a danger to the public or police,

or to destroy the evidence.   “Exigent” is defined in Black’s Law Dictionary as “requiring

immediate action or aid; urgent.”    The courts in Ohio have identified exceptions to the

warrant requirement that justify a warrantless search of a home:         (1) an emergency

situation, (2) search incident to an arrest, (3) “hot pursuit” of a fleeing felon, and (4)

easily destroyed or removed evidence. State v. Cheers, 79 Ohio App.3d 322, 325, 607

N.E.2d 115 (6th Dist.1992); State v. King, 8th Dist. Cuyahoga No. 80573,

2003-Ohio-1143, ¶ 16.

       {¶11} In these delineated situations, the exigent circumstances relieve the police of

the need to obtain a warrant.    The courts, however, have imposed on the state a heavy

burden of demonstrating an exigent circumstance that would overcome the presumption

of unreasonableness attached to all warrantless home entries. Welsh v. Wisconsin, 466

U.S. 740, 750-753, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984).        See also State v. Letsche,

4th Dist. Ross No. 02CA2693, 2003-Ohio-6942, ¶ 20;            State v. Brooks, 10th Dist.

Franklin No. 94APA03-386, 1995 Ohio App. LEXIS 2764, *10 (June 27, 1995). This

court emphasized that, under the exigent circumstances exception, there must be
“compelling reasons” or “exceptional circumstances” to justify a warrantless entry.

State v. Lomax, 8th Dist. Cuyahoga No. 86632, 2006-Ohio- 3725, ¶ 16, citing Alliance v.

Barbee, 5th Dist. Stark No. 2000CA00218, 2001 Ohio App. LEXIS 1120 (Mar. 5, 2001),

citing State v. Moore, 90 Ohio St.3d 47, 52, 734 N.E.2d 804 (2000). In common

language, we review the warrantless entry and ask: was the entry so necessary as to be

compelling; was it imperative that it be so immediate; was there no other good choice or

option?

                                      “Hot Pursuit”

       {¶12} At the suppression hearing, the city of Berea argued Ptl. Makrinos’s “hot

pursuit” of Collins justified the officer’s warrantless entry into his home, and the trial

court denied Collins’s motion to suppress on that ground.        Under this exception, a

warrantless entry into a home to effectuate an arrest is permitted when the police are in

“hot pursuit” of a fleeing felon.   United States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct.

2406, 49 L.Ed.2d 300 (1976). Underlying the “hot pursuit” exception is the idea that it

is unrealistic to expect the police officers to stop in the middle of a chase to obtain an

arrest warrant; as to do so may allow the suspect to escape and render the warrant

subsequently obtained meaningless.

       {¶13} Santana concerned a fleeing felon.     The Supreme Court of Ohio, however,

extended the “hot pursuit” exception to a warrantless entry of the home of a suspect who

committed a misdemeanor traffic offense. Middletown v. Flinchum, 95 Ohio St.3d 43,

765 N.E.2d 330 (2002). In Flinchum, the police officers observed the appellant driving
erratically.   He spun his car tires when the traffic light turned to green. He then stopped

and rapidly accelerated his car, causing it to fishtail when it made a right turn.         The

officers decided to follow him and attempted to approach his vehicle twice.           On both

attempts, he fled from the police.     Later, the officers found him standing on the driver’s

side of his parked car.     When he saw the officers stop their cruiser in front of his car, he

ran.    One of the officers pursued him on foot, repeatedly yelling “Stop” and “Police,”

but he continued to run, toward his house. He then entered his house through the rear

door.   Without his permission, the officer entered his home and arrested him.         He was

subsequently charged with reckless operation of a vehicle and DUI. Id. at 43 - 44.

        {¶14} The Supreme Court of Ohio saw no reason to differentiate the fleeing

suspect who committed a misdemeanor traffic offense in that case and the fleeing felony

in Santana.    Id. at 45.   It held that “[w]hen officers, having identified themselves, are in

hot pursuit of a suspect who flees to a house in order to avoid arrest, the police may enter

without a warrant, regardless of whether the offense for which the suspect is being

arrested is a misdemeanor.” Flinchum at syllabus.         The court cautioned, however, that

its holding did not give law enforcement “unbridled authority to enter a suspect’s

residence at whim or with a blatant disregard for the constraints of the Fourth

Amendment.” Id. at 45.         The court carefully limited its holding to the circumstances

existing in the case.

        {¶15} “The question of whether an entry into a home by peace officers, acting

without a warrant, is ‘reasonable’ requires a careful analysis of the sequential and
consequential events leading up to and including the entry. An entry can never be found

‘reasonable’ based solely upon the fact that criminal conduct, or contraband, was

discovered within the residence.”       State v. Russell, 127 Ohio App.3d 414, 416, 713

N.E.2d 56 (9th Dist.1998), citing State v. Williams, 55 Ohio St.2d 82, 86, 377 N.E.2d

1013 (1978).

        {¶16} Our thorough review of the sequence of events that took place early on

January 16, 2012, reveals the tension between the protections afforded by the United

States Constitution’s Fourth Amendment against unreasonable searches and seizures and

the flow of police work that night on Berea’s Bridge Street.     We are presented with the

challenge of carefully balancing the mandates of guaranteed privacy protections against

those of more immediate police action.       This case presents as one where elements are

present for both application of the Fourth Amendment protections and real time police

work.

                          Whether the Officer was in “Hot Pursuit”

        {¶17} The undisputed evidence in this case shows that the police officer saw

Collins’s vehicle appear to be speeding shortly before Collins arrived at his home. At

the time the officer was traveling on the opposite side of the road.     Before the officer

could turn around and pull Collins over for speeding, Collins pulled into his driveway,

which was several driveways in front of the police cruiser.       The police officer turned

into the same driveway as well.     Collins exited his car and walked towards the police car

to talk to the officer.   The officer indicated that he wanted to talk to Collins because he
was speeding. Collins said “ok” but stated he needed to put his guitar down on the door

steps. The officer noted in his report that during the brief exchange, Collins had slurred

speech and “appeared to be under the influence.”      After staying inside his police vehicle

to run Collins’s license plate information, the officer exited the police vehicle.   At that

point, Collins “ran up the steps” and locked the door behind him. The officer knocked

on the door and ordered Collins to open the door. Collins then insisted the officer

needed a warrant to enter his house. Collins blocked the door with his body. The

officer, with his sergeant at his side, forced the door open and arrested Collins.

       {¶18} Flinchum requires the police to not only identify themselves but, most

notably, be in hot pursuit of a suspect.   The circumstances of this case contrast sharply

with Flinchum.     In Flinchum, the suspect was aware of the presence of the police early

on and he fled from the officers twice when they attempted to approach his vehicle.      The

suspect later left his car, and, when he realized the police vehicle was nearby, he again

fled by running away while an officer chased him, yelling “Stop” and “Police” repeatedly.

       {¶19} Here, Collins turned into his driveway before the officer had a chance to

even turn around and follow him, much less “pursue” him. Collins already had parked

his car before the police officer identified himself and indicated the reason for his

presence.   Even if we were to consider the officer’s statement that he wanted to talk to

Collins tantamount to a police order to “stop,” the “pursuit” did not begin until the officer

exited his vehicle to approach Collins. It ended almost as soon as it began, because
Collins immediately ran up the door steps and went inside his home. In Flinchum, the

warrantless entry was justified by the need to apprehend a suspect who had aggressively

fled from the police on three separate occasions — twice ignoring the pursuit by the

police and then ran from the police while an officer chased him on foot and repeatedly

commanded him to stop. The circumstances in this case did not add up to, and did not

constitute, a pursuit.   Nor can any recitation of the chronology add up to “hot.”

       {¶20}    The courts, including this court, have been unwilling to weaken the

scrupulously guarded Fourth Amendment protections of the home to secure an arrest and

conviction for a traffic offense, where the prosecution did not meet its burden showing

the police were in a “hot pursuit” of a fleeing suspect. See, e.g., Cleveland v. Lynch, 8th

Dist. Cuyahoga No. 98201, 2012-Ohio-5740 (officers’ entry into the appellant’s home

following his involvement in a single-car accident was not justified under the “hot

pursuit” exception because the officers were not in hot pursuit); State v. Cross, 4th Dist.

Washington No. 12CA54, 2014-Ohio-1046 (the court did not find “hot pursuit” where the

police officer never activated his cruiser’s lights or sirens alerting the appellant of police

presence before the appellant parked his vehicle in his driveway and went inside the

garage);    Letsche, 4th Dist. Ross No. 02CA2693, 2003-Ohio-6942 (“hot pursuit”

exception did not apply because there was no pursuit in public place prior to the OVI

suspect entering his own home).

       {¶21} We are fully cognizant, here and otherwise, of the danger posed to the

public by intoxicated drivers.    Here, though, Collins had already arrived at his home and
was separated from his vehicle.      His vehicle was blocked in the driveway by the police

vehicle; thus, there was at that time little imminent threat to public safety.   Furthermore,

the possibility that Collins would escape if the police were to obtain a warrant appeared to

be remote.     Unlike the suspect in Flinchum, who fled from the police twice in his vehicle

and then ran from the police on an extended foot chase, Collins went inside his house.

He had been physically identified, his license plate run, and his address verified.

       {¶22} It is quite apparent that the immediate warrantless entry into Collins’s home

was made to apprehend him for a field sobriety test and a measurement of his blood

alcohol content so as to confirm the officer’s suspicion that Collins was driving while

intoxicated.    We recognize the police officers’ need to timely ascertain an OVI suspect’s

blood-alcohol level, because such evidence dissipates over time, and a delay caused by

obtaining a warrant could affect the evidence for OVI.        However, limitations on what

the police can do to obtain and preserve evidence are carefully identified and limited by

the courts applying the Fourth Amendment.

       {¶23} Balancing the people’s guaranteed right to dwell in reasonable security and

freedom from intrusion with the police officers’ need for acting swiftly to obtain and

preserve evidence, we conclude the city did not demonstrate compelling exigent

circumstances justifying police officers intruding into a private home to arrest an OVI

suspect for the purposes of obtaining evidence of intoxication.     The police had not been

in a “hot pursuit” of the suspect.
       {¶24} Finally, we note that for a warrantless entry to effect an arrest to be lawful,

in addition to an exigent circumstance, the police still must have probable cause to arrest.

 United States v. Johnson, 256 F.3d 895 (9th Cir.2001). In this case, there is no clear

showing of probable cause to arrest, because, prior to the entry, the only articulated

reasons for the officer’s belief that Collins was driving while intoxicated was his

speeding and slurred speech.     The lack of a well-supported showing of probable cause

makes the intrusion in this case even less justifiable.

       {¶25} The trial court in this case correctly cited the legal principle announced in

Flinchum, 95 Ohio St.3d 43, 765 N.E.2d 330, but erroneously concluded that the police

officer was in “hot pursuit” of Collins justifying a warrantless entry into his home. The

warrantless entry violated Collins’s Fourth Amendment rights. The sole assignment of

error is sustained.

       {¶26} The judgment of the Berea Municipal Court is reversed, and the case is

remanded for further proceedings consistent with this opinion.

       It is ordered that appellant recover of said appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Berea

Municipal Court to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

______________________________________________
TIM McCORMACK, JUDGE

MARY EILEEN KILBANE, P.J., and
MELODY J. STEWART, J., CONCUR


J-A16003-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAMES BRIAN, SR.,                                     IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

EVIE M. SPRINGFIELD,

                            Appellant                     No. 1145 WDA 2015

               Appeal from the Judgment Entered July 22, 2015
              In the Court of Common Pleas of Allegheny County
                     Civil Division at No(s): GD 10 023917

BEFORE: SHOGAN, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED SEPTEMBER 15, 2016

       Appellant,    Evie    M.    Springfield   (“Daughter”),   appeals   from   the

judgment entered in favor of James Brian, Sr. (“Father”) following a nonjury

trial in this civil matter.       Daughter failed to file timely post-trial motions.

Accordingly, we affirm.

       We summarize the history of this case as follows.             Prior to 1998,

Father owned a parcel of real estate in Monroeville, PA.            In 1998, Father

transferred the parcel to Daughter and James G. Brian, Jr. (“Son”).               The

parties anticipated that a portion of the land would be leased to Sheetz, Inc.

(“Sheetz”) for a convenience store and that Daughter and Son would receive

monthly rental payments.            In return for the transfer of the real estate,
____________________________________________

*
    Retired Senior Judge assigned to the Superior Court.
J-A16003-16

Daughter and Son entered into an oral agreement with Father to provide

Father with future financial assistance in the form of monthly payments for

as long as Daughter and Son received rental income from Sheetz. Daughter

and Son entered into the lease agreement with Sheetz on March 16, 2002,

and each began to make monthly payments to Father in the amount of

$500.00.    After four years and nine months, Daughter and Son each

unilaterally increased their monthly payments to $1,000.00.              After an

additional one year and six months, Daughter unilaterally decreased her

monthly payment to Father to $500.00.          After another twelve months,

Daughter completely terminated her monthly payments to Father.

      On December 17, 2010, Father filed a civil complaint against Daughter

and an amended complaint.        Father raised claims of breach of contract,

specific performance, and anticipatory breach of contract.        On June 13,

2011, Daughter filed an answer and new matter, which claimed applicability

of the statute of frauds. Father filed an answer on October 28, 2013.

      The matter proceeded to a nonjury trial on May 1, 2015, and the

parties then submitted proposed findings of fact and conclusions of law. On

May 27, 2015, the trial court entered a verdict and order of court finding in

favor of Father and against Daughter in the amount of $76,000.00, plus

interest and costs. Daughter failed to file timely post-trial motions.

      On June 25, 2015, new counsel for Daughter entered a praecipe for

appearance and filed a “petition for leave to file post-trial motions nunc pro

                                     -2-
J-A16003-16

tunc.” In an order dated June 25, 2015, and entered on June 26, 2015, the

trial court denied Daughter’s petition. Daughter filed an appeal on June 25,

2015, which was docketed by this Court at 1006 WDA 2015.             The verdict

eventually was reduced to judgment on July 22, 2015, and Daughter filed a

second appeal that was docketed at 1145 WDA 2015.              On September 4,

2015, this Court entered an order dismissing the appeal at 1006 WDA 2015

as “unnecessary.”       The trial court did not direct the filing of a Pa.R.A.P.

1925(b) statement. The trial court filed a one-paragraph Pa.R.A.P. 1925(a)

opinion indicating that any issues on appeal are waived due to Daughter’s

failure to file timely post-trial motions.

       Daughter presents the following issue for our review:

              Whether the Lower Court erred in denying Appellant’s
       Verified Petition for Leave to File Post Trial Motion nunc pro tunc?

Appellant’s Brief at 4. In her sole issue on appeal, Daughter argues that the

trial court abused its discretion in denying her petition requesting the

opportunity to file post-trial motions nunc pro tunc so that she could raise

substantive issues on appeal challenging the award of money to Father.

Appellant’s Brief 10-17.1

____________________________________________

1
  To the extent Daughter attempts to argue the underlying merits of this
matter, Appellant’s Brief at 12-17, as we discuss infra, “If an issue has not
been raised in a post-trial motion, it is waived for appeal purposes.” Lane
Enterprises, Inc. v. L.B. Foster Co., 710 A.2d 54 (Pa. 1998). Because
Daughter failed to file post-trial motions, we decline her invitation to address
the underlying merits of this case.

                                           -3-
J-A16003-16

      Pennsylvania Rule of Civil Procedure 227.1 sets forth the requirements

for post-trial relief and states, in pertinent part, as follows:

      Rule 227.1. Post-Trial Relief

                                       ***

      (c) Post-trial motions shall be filed within ten days after

            (1) verdict, discharge of the jury because of inability
            to agree, or nonsuit in the case of a jury trial; or

            (2) notice of nonsuit or the filing of the decision
            in the case of a trial without jury.

      If a party has filed a timely post-trial motion, any other party
      may file a post-trial motion within ten days after the filing of the
      first post-trial motion.

Pa.R.C.P. 227.1 (emphases added).         Thus, pursuant to the rule, a party

must file post-trial motions within ten days after the filing of the decision

following a nonjury trial. Pa.R.C.P. 227.1(c)(2).

      As our Supreme Court has explained:

            Under Rule 227.1, a party must file post-trial motions at
      the conclusion of a trial in any type of action in order to
      preserve claims that the party wishes to raise on appeal.

Chalkey v. Roush, 805 A.2d 491, 496 (Pa. 2002) (emphasis in original).

The purpose of this rule is “to provide the trial court the first opportunity to

review and reconsider its earlier rulings and correct its own error.” Chalkey

v. Roush, 757 A.2d 972, 975 (Pa. Super. 2000) (en banc) (quoting

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Soderberg       v.   Weisel,     687    A.2d      839,   845   (Pa.   Super.   1997)).2

Consequently, the failure to timely file post-trial motions–regardless of

whether the decision is rendered in an action at law or in equity–results in

waiver of those issues the party wishes to raise on appeal. Chalkey, 805

A.2d at 496.      See also Lane Enterprises, Inc. v. L.B. Foster Co., 710

A.2d 54 (Pa. 1998) (“If an issue has not been raised in a post-trial motion, it

is waived for appeal purposes.”).              Indeed, “[o]ur Court has consistently

refused to entertain appeals from orders or verdicts following nonjury trials

in actions at law when no post-trial motions have been filed.” Lenhart v.

Cigna Companies, 824 A.2d 1193, 1196 (Pa. Super. 2003).

       The decision whether to allow the filing of a post-trial motion nunc pro

tunc is vested in the sound discretion of the trial court and will not be

reversed absent an abuse of that discretion. Lenhart, 824 A.2d at 1195.

“An abuse of discretion is not merely an error of judgment but is found

where the law is overridden or misapplied, or the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias or ill will

as shown by the evidence or the record.” Id. (citation and quotation marks

omitted). A court may grant permission to file a post-trial motion nunc pro

tunc when a party shows she was unable to file the motion due to

extraordinary circumstances involving fraud or a breakdown in the court’s
____________________________________________

2
  Likewise, Pa.R.A.P. 302(a) provides that “[i]ssues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”

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operation. D.L. Forrey & Associates, Inc. v. Fuel City Truck Stop, Inc.,

71 A.3d 915, 920 (Pa. Super. 2013). Moreover, we have stated that “[t]he

grant of nunc pro tunc relief is not designed to provide relief to parties

whose counsel has not followed proper procedure in preserving appellate

rights.” Lenhart, 824 A.2d at 1197-1198. As our Supreme Court has long

expressed, “if inadvertence of counsel were a valid reason for disregarding

the time limitation rules of our Supreme Court, then they might as well not

have any rules at all.” E.J. McAleer & Co. v. Iceland Products, 381 A.2d

441, 444 (Pa. 1977) (quoting the trial court with approval).

       Instantly, our review of the certified record reflects that following a

nonjury trial, the court announced its verdict in an order dated and entered

May 27, 2015. The docket reveals that Pa.R.C.P. 236 notice3 was given to

the parties on May 28, 2015. Daughter failed to file her post-trial motions

within ten days as required by Rule 227.1. Rather, on June 25, 2015, new

counsel filed a praecipe for appearance on Daughter’s behalf and also filed a

petition for leave to file post-trial motions nunc pro tunc.     In Daughter’s

petition, she alleged that her trial counsel did not immediately notify her of

the nonjury verdict, and she did not receive notice of the verdict within ten

days following its entry on the docket.          Petition, 6/25/15, at 1, ¶ 3.

Daughter further noted that it was her desire to pursue post-verdict relief
____________________________________________

3
  Pa.R.C.P. 236(b) requires the prothonotary to include in the docket a
notation that notice of the decision was given to the parties.

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J-A16003-16

and engaged new counsel. Id. at ¶ 5. As previously indicated, on July 22,

2015, after expiration of the time to file timely post-trial motions, Father

filed a praecipe for entry of judgment and judgment was properly entered on

the docket.

      Daughter’s failure to file timely post-trial motions and her delay in

seeking leave to file post-trial motions nunc pro tunc were not due to any

extraordinary circumstances or breakdown in the court’s operation. Rather,

the procedural missteps that led to the failure to file timely post-trial

motions were wholly attributable to Daughter. Under these circumstances,

the trial court acted well within its discretion when it denied Daughter’s

request for leave to file post-trial motions nunc pro tunc. Accordingly, we

affirm.

      Judgment affirmed.

      Judge Olson joins the Memorandum.

      Judge Strassburger files a Dissenting Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/15/2016

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