                          STATE OF WEST VIRGINIA
                        SUPREME COURT OF APPEALS

Jerry Markham,
Administratrix of the Estate of Selwyn Vanderpool,
and Joseph W. Boswell, III,
Plaintiffs Below, Petitioners                                               FILED
                                                                          May 26, 2020
vs.) No. 19-0163 (Greenbrier County 16-C-33B)                           EDYTHE NASH GAISER, CLERK
                                                                        SUPREME COURT OF APPEALS
                                                                            OF WEST VIRGINIA
West Virginia Department of Health and
Human Resources and Drema Stanley,
Defendants Below, Respondents

                           MEMORANDUM DECISION

               Petitioners Jerry Markham, Administratrix of the Estate of Selwyn
Vanderpool, and Joseph W. Boswell, III, appeal the circuit court’s January 14, 2019, order
granting summary judgement in favor of Respondents West Virginia Department of Health
and Human Resources (“DHHR”) and Drema Stanley (“Ms. Stanley”).1 The circuit court’s
order granting summary judgment in favor of Respondents provided that “plaintiffs have
failed to clearly establish any constitutional or statutory violations, nor any fraudulent,
malicious or oppressive conduct on [the] part of the defendants. As such, plaintiffs cannot
defeat either defendant’s entitlement to qualified immunity as a matter of law.” On appeal,
Petitioners contend that the circuit court erred in ruling that 1) “Petitioners could not
recover from Respondent DHHR up to the limits of applicable insurance proceeds,” and 2)
Respondents are entitled to qualified immunity.

               This Court has considered the parties’ briefs and the record on appeal. The
facts and legal arguments are adequately presented, and the decisional process would not
be significantly aided by oral argument. Upon consideration of the standard of review, the
briefs, and the record presented, the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision affirming the order of the
circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

      1
        Respondents are represented by Jace H. Goins, Esq., and Michelle E. Gaston, Esq.
Petitioners are represented by Barry L. Bruce, Esq.

                                            1
              Selwyn Vanderpool (“Mr. Vanderpool”) and Joseph W. Boswell, III (“Mr.
Boswell”), filed their complaint on February 19, 2016, against Respondents, DHHR and
Ms. Stanley, a DHHR Adult Protective Services counselor. According to Mr. Boswell, he
met Mr. Vanderpool in 2006. Mr. Boswell, who was 28 years old in 2006, owned a used
automobile lot and a sporting goods store. He sold Mr. Vanderpool, who was 84 years old
in 2006, a pickup truck. Mr. Boswell became close friends with Mr. Vanderpool and his
wife, Lila Vanderpool, after this initial meeting. Thereafter, Mrs. Vanderpool sustained
injuries from a fall and was placed in Brier Center, a nursing home in Greenbrier County.2

              Mrs. Vanderpool was completely bedridden during the time she was in the
nursing home. She was declared mentally incompetent on November 29, 2013. According
to the complaint, the nursing home expenses were “very costly,” and Mr. Vanderpool
inquired as to what social services were available to help defray the costs. The complaint
provides that Mr. Vanderpool “was advised by the Brier Center that he had too many assets
in his and his wife’s names, and he should do something about moving his assets out of
their names. The Vanderpools approached Boswell and requested he allow them to transfer
assets to Boswell.”

              On January 22, 2014, the DHHR received a referral concerning the possible
financial exploitation of Mrs. Vanderpool. The DHHR assigned this matter to Ms. Stanley.
Her investigation included interviews with Mr. Vanderpool, Mrs. Vanderpool, Mr.
Boswell, nursing home employees, and employees of two banks. During the investigation,
Mr. Vanderpool provided Ms. Stanley with a written release authorizing her to access his
bank records and to conduct a deed and title search to determine whether any of the
Vanderpools’ property had been conveyed, transferred or sold. The investigation
uncovered numerous instances in which bank accounts and real estate had been transferred
from the Vanderpools to Mr. Boswell individually or to his company, Cornerstone
Marketing, LLC.

              In one such instance, it was determined that Mr. Boswell called Sun Life
Bank, told them he was Mrs. Vanderpool’s son, and cashed out a retirement account in
Mrs. Vanderpool’s name. The amount of the account was $121,646.20. The bank had
recordings of phone calls Mr. Boswell made to it regarding this account. When asked
during his deposition whether he had held himself out as Mrs. Vanderpool’s son when
speaking to the bank, Mr. Boswell replied:

               Here’s what I said when they asked me who I was. I said, my
               name’s Joey Boswell or Joseph Boswell. . . . So, obviously,
               right there Sun Life would know that I’m not a Vanderpool,
               but the relationship had grown really, really strong with Lila

      2
          It is unclear the exact date when Mrs. Vanderpool entered the nursing home.

                                             2
             and myself. She treated me as if I was her son and I do recall
             at some point, you know, after Lila had given all the
             information, you know, Social, birthday, address. She had to
             go through a, I would say a dissertation, you know, when
             you’re dealing with that type of situation. I do recall stating I
             was her son, but no – you know, obviously they knew Joey
             Boswell was not her son, but now they treated me as a son. She
             was like a mother role or grandmother role to me, so that’s
             what I did.

             Q.      And, eventually, I’ll just cut to the chase, the money in
             Lila’s retirement account was cashed out, correct?

             A.     It was.

             Q.    And a check, I believe, was sent to – was it sent to Lila
             Vanderpool, made payable to her from Sun Life for $121,000?

             A.    The best I recall, it was sent to Lila Vanderpool at her
             home.

             Q.    And eventually that money made its way into the
             Cornerstone Marketing (Boswell’s business) bank account.
             Correct?

             A.     Correct.

(Emphasis added).

              As a result of her investigation, Ms. Stanley referred the matter to law
enforcement. On January 31, 2014, the Greenbrier County Sheriff’s Department opened a
criminal investigation into Mr. Boswell. According to State Trooper William Pendleton,
who investigated this matter, the criminal investigation substantiated the allegations that
Ms. Stanley had relayed—that Mr. Boswell was financially exploiting Mrs. Vanderpool.
Trooper Pendleton set forth numerous instances of potential financial exploitation,
including a deed of trust to a farm being signed over to Mr. Boswell’s business,
Cornerstone Marketing:

             During the course of our investigation, we found that – that Mr.
             Boswell had taken one of his family members, a notary public,
             into the nursing home to sign over the [Vanderpool owned]
             farm into Cornerstone Marketing’s name. And Mr. Vanderpool
             was present. But we did not believe at the time that we were

                                            3
              doing this that Mr. Vanderpool had the capacity to sign over
              her [Mrs. Vanderpool’s] interest in the farm to Cornerstone
              Marketing.

                A criminal complaint was filed against Mr. Boswell on February 7, 2014, for
the felony charge of “unlawfully, intentionally, and feloniously misappropriating or
misusing the funds or assets of an elderly person . . . namely, Lila Vanderpool.” Trooper
Pendleton stated that Ms. Stanley did not make the decision to file criminal charges against
Mr. Boswell, rather, that decision was made by law enforcement and by the prosecutor’s
office.3 When asked about Ms. Stanley’s handling of this matter, Trooper Pendleton stated
that her actions were “extremely appropriate.” When asked whether the DHHR had reason
to investigate financial exploitation in this matter, Trooper Pendleton testified, “yes,
emphatically yes.” Finally, Trooper Pendleton referred to this matter as a “textbook case .
. . [of] financial exploitation of the elderly.”

               The criminal charge against Mr. Boswell was eventually dropped due to Mrs.
Vanderpool passing away and Mr. Vanderpool’s reluctance to cooperate with law
enforcement. Regarding Mr. Vanderpool’s reluctance to pursue this matter—Mr.
Vanderpool initially cooperated with the DHHR’s investigation. According to a report
from Ms. Stanley, Mr. Vanderpool stated that “Mr. Boswell harassed him into signing his
wife’s medical and power of attorney over to him.” However, shortly after the sheriff’s
department began their investigation, they attempted to interview Mr. Vanderpool but he
advised them that he was not going to speak with them and that he was being represented
by attorney Barry Bruce, the same attorney who represented Mr. Boswell. Further, law
enforcement discovered that Mr. Bruce created a trust and that all of the property and bank
accounts that had previously been transferred from the Vanderpools to Mr. Boswell was
placed in this trust. As noted by Trooper Pendleton during his deposition, “the trust wasn’t
created until the investigation [of financial exploitation of Mrs. Vanderpool] began.”
According to Mr. Boswell’s testimony, all of the items in this trust eventually went to Mr.
Boswell after Mr. and Mrs. Vanderpool died.

       3
          Petitioners filed a separate lawsuit arising out of this investigation against the
sheriff's department and an individual employee of the sheriff’s department alleging that
they were negligent in obtaining and serving a subpoena for Petitioners’ bank records,
resulting in the disclosure of confidential financial information. The sheriff’s department
and the individual employee filed a motion to dismiss this lawsuit. The circuit court
granted defendants’ motion to dismiss, and Petitioners appealed to this Court. This Court
affirmed the dismissal in Vanderpool v. Hunt, 241 W. Va. 254, 823 S.E.2d 526 (2019).

                                             4
               In February of 2016, Mr. Boswell and Mr. Vanderpool, who was 92 years
old at the time, filed the complaint in the instant case against the DHHR and Ms. Stanley.4
The two counts set forth in the complaint are as follows:

              Count I. Defendant Stanley was grossly negligent in her
              investigation of plaintiffs’ APS case and acted in a wilful [sic]
              and wanton manner ignoring West Virginia Code 9-6-1, et seq,
              and Social Services Manual/Adult Services Policy[.]

              Count II. The manager and supervisors of the Greenbrier Field
              Office of DHHR were grossly negligent and acted in a wilful
              [sic] and wanton manner regarding the rights and dignity of the
              plaintiffs in not supervising the APS workers at said facility to
              abide and follow statutory and regulatory requirements
              regarding APS[.]

               The complaint alleged that Ms. Stanley’s “wrongful and unsubstantiated
actions directly resulted in [Mr. Boswell’s] loss of $370,000 (a sum certain) plus thousands
of dollars in lost sales based on previous monthly income.” Further, the complaint alleged
that Mr. Boswell suffered loss of his business reputation and that Mr. Vanderpool suffered
intentional infliction of emotional distress based on the DHHR’s investigation. The
complaint also provides that “[t]he Plaintiffs in this case are seeking no recovery from State
funds, but only recovery up to the limits of Defendants, DHHR’s and Stanley’s, State
and/or personal liability coverages.”

               Ms. Stanley and the DHHR filed a motion for summary judgment on July 24,
2017. Following a hearing, the circuit court entered an order granting the motion for
summary judgment on January 14, 2019. The circuit court concluded that “plaintiffs have
failed to clearly establish any constitutional or statutory violations, nor any fraudulent,
malicious or oppressive conduct on [the] part of the defendants. As such, plaintiffs cannot
defeat either defendant’s entitlement to qualified immunity as a matter of law.” After entry
of the circuit court’s order, Petitioners filed the instant appeal.

             This Court has previously held that “[a] circuit court’s entry of summary
judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d
755 (1994).

       4
       Mr. Vanderpool died in July 2017. Jerry Markham, the Administratrix of Mr.
Vanderpool’s estate, was substituted as the named plaintiff.

                                              5
               On appeal, Petitioners raise two assignments of error. First, Petitioners assert
that the circuit court erred in ruling that “Petitioners could not recover from Respondent
DHHR up to the limits of applicable insurance proceeds.” Second, Petitioners contend that

              the circuit court . . . committed reversible error in ruling that
              there were no issues of material fact and that Respondents were
              entitled to summary judgment as a matter of law on the
              erroneous basis that Petitioners failed to clearly establish any
              constitutional or statutory violations, nor any fraudulent,
              malicious or oppressive conduct on [the] part of Respondents.

              We address each argument in turn.

              Petitioners first argue that the circuit court erred in ruling that “Petitioners
could not recover from Respondent DHHR up to the limits of applicable insurance
proceeds.” According to Petitioners, they may recover up to the limits of the DHHR’s
insurance “proceeds” pursuant to Shaffer v. Stanley, 215 W. Va. 58, 593 S.E.2d 629 (2003).
In syllabus points eight and nine of Shaffer, this Court held:

                      8. “Suits which seek no recovery from state funds, but
              rather allege that recovery is sought under and up to the limits
              of the State’s liability insurance coverage, fall outside the
              traditional constitutional bar to suits against the State.”
              Syllabus Point 2, Pittsburgh Elevator v. W.Va. Bd. of Regents,
              172 W.Va. 743, 310 S.E.2d 675 (1983).

                     9. “W.Va. Code, 29-12-5(a) (1986), provides an
              exception for the State’s constitutional immunity found in
              Section 35 of Article VI of the West Virginia Constitution. It
              requires the State Board of Risk and Insurance Management to
              purchase or contract for insurance and requires that such
              insurance policy shall provide that the insurer shall be barred
              and estopped from relying upon the constitutional immunity of
              the State of West Virginia against claims or suits.” Syllabus
              Point 1, Eggleston v. W.Va. Dept. of Highways, 189 W.Va.
              230, 429 S.E.2d 636 (1993).

              Petitioners argue that because they are only seeking recovery under
Respondents’ insurance policies, Respondents are not entitled to qualified immunity.
According to Petitioners, the circuit court’s “unconscionable failure to acknowledge
Shaffer and its concomitant failure to apply the proper controlling authority herein clearly
constitutes grounds for reversal.”

                                              6
             Conversely, Respondents argue that Petitioners’ reliance on Shaffer is
“wholly misplaced as that decision pertains to sovereign immunity not qualified immunity.”
(Emphasis added). We agree.

             In syllabus point two of W. Va. Bd. of Educ. v. Marple, 236 W. Va. 654, 783
S.E.2d 75 (2015), this Court held:

                      The state insurance policy exception to sovereign
               immunity, created by West Virginia Code § 29-12-5(a)(4)
               [2006] and recognized in Syllabus Point 2 of Pittsburgh
               Elevator Co. v. W.Va. Bd. of Regents, 172 W.Va. 743, 310
               S.E.2d 675 (1983), applies only to immunity under the West
               Virginia Constitution and does not extend to qualified
               immunity. To waive the qualified immunity of a state agency
               or its official, the insurance policy must do so expressly, in
               accordance with Syllabus Point 5 of Parkulo v. W.Va. Bd. of
               Probation & Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996).

(Emphasis added).

               This Court explained in Marple that “[t]he fact that a plaintiff seeks recovery
against a state agency and/or its official ‘under and up to the limits’ of its liability insurance
policy does not waive qualified immunity. Rather, qualified immunity is waived by an
insurance policy only if the policy’s terms expressly say so.” Id. at 662, 783 S.E.2d at 83.
In the present case, there is no evidence demonstrating that Respondents’ insurance policies
include an express waiver of qualified immunity. Therefore, we agree with the circuit
court’s ruling. Under this Court’s clear holding in Marple, Petitioners first assignment of
error fails.

               Petitioners’ next assignment of error provides that the circuit court erred in
granting summary judgment on the basis that Respondents are entitled to qualified
immunity. Specifically, Petitioners assert that the circuit court erred by concluding that
there are no issues of material fact and that Petitioners failed to clearly establish any
constitutional or statutory violations, nor any fraudulent, malicious or oppressive conduct
on the part of Respondents.

             This issue requires us to examine our qualified immunity jurisprudence. In
Crouch v. Gillispie, 240 W. Va. 229, 809 S.E.2d 699 (2018), this Court noted that

               [q]ualified immunity is broad and protects all but the plainly
               incompetent or those who knowingly violate the law. Further,
               a public officer is entitled to qualified immunity for
               discretionary acts, even if committed negligently. In light of

                                                7
              these standards, qualified immunity determinations often
              center upon whether a decision was discretionary or
              nondiscretionary.

Id. at 234, 809 S.E.2d at 704 (Internal citation and quotation omitted).

              Further,

              [t]o the extent that governmental acts or omissions which give
              rise to a cause of action fall within the category of discretionary
              functions, a reviewing court must determine whether the
              plaintiff has demonstrated that such acts or omissions are in
              violation of clearly established statutory or constitutional rights
              or laws of which a reasonable person would have known or are
              otherwise fraudulent, malicious, or oppressive in accordance
              with State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d
              591 (1992). In absence of such a showing, both the State and
              its officials or employees charged with such acts or omissions
              are immune from liability.

Syl. Pt. 11, W. Va. Reg’l Jail & Corr. Facility Auth. v. A.B., 234 W. Va. 492, 766 S.E.2d
751 (2014).

              This Court has also held that

              [i]f a public officer is either authorized or required, in the
              exercise of his judgment and discretion, to make a decision and
              to perform acts in the making of that decision, and the decision
              and acts are within the scope of his duty, authority, and
              jurisdiction, he is not liable for negligence or other error in the
              making of that decision, at the suit of a private individual
              claiming to have been damaged thereby.

Syl. Pt. 4, Clark v. Dunn, 195 W. Va. 272, 465 S.E.2d 374 (1995).

              In the present case, the circuit court noted that the duties and responsibilities
of Adult Protective Services are set forth in W. Va. Code § 9-6-2(c):

              (c) The secretary shall design and arrange such rules to attain,
              or move toward the attainment, of the following goals to the
              extent that the secretary believes feasible under the provisions
              of this article within the state appropriations and other funds
              available:

                                              8
              (1) Assisting adults who are abused, neglected, financially
              exploited or incapacitated in achieving or maintaining self-
              sufficiency and self-support and preventing, reducing and
              eliminating their dependency on the state;
              (2) Preventing, reducing and eliminating neglect, financial
              exploitation and abuse of adults who are unable to protect their
              own interests;
              (3) Preventing and reducing institutional care of adults by
              providing less intensive forms of care, preferably in the home;
              (4) Referring and admitting abused, neglected, financially
              exploited or incapacitated adults to institutional care only
              where other available services are inappropriate;
              (5) Providing services and monitoring to adults in institutions
              designed to assist adults in returning to community settings;
              (6) Preventing, reducing and eliminating the exploitation of
              incapacitated adults and facility residents through the joint
              efforts of the various agencies of the Department of Health and
              Human Resources, the adult protective services system, the
              state and regional long-term care ombudsmen, administrators
              of nursing homes or other residential facilities and county
              prosecutors;
              (7) Preventing, reducing and eliminating abuse, neglect, and
              financial exploitation of residents in nursing homes or
              facilities; and
              (8) Coordinating investigation activities for complaints of
              financial exploitation, abuse and neglect of incapacitated
              adults and facility residents among the various agencies of the
              Department of Health and Human Resources, the adult
              protective services system, the state and regional long-term
              care ombudsmen, administrators of nursing homes or other
              residential facilities, county prosecutors, if necessary, and
              other state or federal agencies or officials, as appropriate.

               The circuit court found that this statute’s plain language makes clear that
Adult Protective Services “is charged with preventing, reducing, eliminating and
investigating the exploitation and abuse and/or neglect of protected persons in this State.”
Based on this statutory language setting forth the duties and responsibilities of Adult
Protective Services, the circuit court determined that the “complained of acts in this case
relate to the discretionary government functions” of the DHHR. We agree.

              The main violation asserted by Petitioners is that Ms. Stanley failed to
provide certain documents to Mr. and Mrs. Vanderpool and to Mr. Boswell during the
course of her investigation. Specifically, Petitioners assert that the Adult Protective

                                             9
Services Policy contained in Chapter 1, § 1-14-2(d)(2) and (10) of the Social Services
Manual, required Ms. Stanley to provide Mr. and Mrs. Vanderpool with a document
entitled “Client Rights During the APS (Adult Protective Service) Process,” and to provide
Mr. Boswell with a document entitled “Alleged Perpetrator’s Rights During the APS
Process.” Petitioners assert that Ms. Stanley’s failure to provide Mr. and Mrs. Vanderpool
and Mr. Boswell with the forms required by the Social Services Manual constituted a
violation of W. Va. Code § 9-6-2(b).5

               Conversely, Respondents contend that Petitioners’ complaint did not identify
any statutory or constitutional provision that was violated. According to Respondents,
Petitioners’ references to documents that were “required” to be produced by the Social
Services Manual are erroneous. They assert that Mr. Vanderpool was not given a victim’s
rights form because he was not the alleged victim. Further, Mrs. Vanderpool, now
deceased, is not a party to this action, and whether she was provided with a particular form
is irrelevant. Respondents also assert that Mr. Boswell received the notice that is required
to be provided to “the alleged perpetrator.”6

              Respondents also note that assuming arguendo that Petitioners identified a
statutory violation, summary judgment was nevertheless appropriate because Petitioners’
claims lack the requisite causation, as set forth by this Court in Crouch, to overcome
qualified immunity. In Crouch, the Court examined whether internal DHHR policy
violations rose to the level of being violations of a clearly established right. The Court
provided:

                [w]e are wary of allowing a party to overcome qualified
                immunity by cherry-picking a violation of any internal
                guideline irrespective of whether the alleged violation bears
                any causal relation to the ultimate injury. Therefore, in the
                absence of allegations tying the alleged violations to [the]

       5
           It provides:

                (b) The secretary shall propose rules for legislative approval in
                accordance with the provisions of § 29A-3-1 et seq. of this code
                regarding the organization and duties of the adult protective
                services system and the procedures to be used by the
                department to effectuate the purposes of this article. The rules
                may be amended and supplemented from time to time.
       6
         According to testimony from Ms. Stanley, and her co-worker, the “Alleged
Perpetrator’s Rights During the APS Process” form was read to Mr. Boswell during the
investigation.

                                               10
              death, we are unable to view this case as more than an abstract
              assertion that DHHR could have investigated more thoroughly.

240 W. Va. at 237, 809 S.E.2d at 707 (Footnote omitted).

              We find the instant case analogous to Crouch. Even if we concluded that
Ms. Stanley’s alleged failure to provide Mr. Boswell with a form from the Social Services
Manual rose to the level of a clearly established statutory right, we agree with Respondents
that the causal connection between the alleged DHHR improprieties and Petitioners’
damages simply do not exist. Mr. Boswell’s alleged damages include loss of business
income as a result of harm done to his business reputation and to his “very lucrative multi-
level business.” Mr. Boswell asserts that his arrest for financial exploitation of an elderly
person and the subsequent media coverage of his arrest were brought about by
Respondents. However, Respondents assert that it is clear from Mr. Boswell’s own
testimony that: 1) his business declined in 2013, the year before the DHHR investigation;
2) his business partners were responsible for the demise of his business by fraudulently
terminating him from the business and revoking his “buyout” (Mr. Boswell sued his
business partners and asserted that he was fraudulently terminated); 3) the publicity which
he blames for damaging his business reputation occurred after his arrest on February 7,
2014, as opposed to any time before the arrest when the DHHR investigation was ongoing;
4) there is no evidence that Respondents leaked information regarding the confidential
investigation to the media; 5) arrests are public knowledge and are routinely publicized in
the media; and 6) Mr. Boswell’s own conduct was the cause of his arrest and any resulting
damage to his reputation.

                We agree with Respondents’ argument and conclude that Petitioners have
failed to show any causal relationship between their alleged damages and Ms. Stanley’s
alleged failure to provide Mr. Boswell with a form from the Social Services Manual.
Further, it is undisputed that the decision to arrest Mr. Boswell and charge him with a crime
was not made by the DHHR or Ms. Stanley. Rather, this action was taken by the sheriff’s
department and the prosecuting attorney after a criminal investigation occurred.

               Next, Petitioners cite several facts that, they argue, demonstrate
Respondents’ “gross negligence, willful and wanton misconduct or intentional
misconduct.” These include: 1) Respondents’ failure to maintain accurate records; 2)
Respondents’ failure to immediately refer the financial exploitation investigation to the
appropriate law enforcement agency; 3) Respondents’ failure to “fact-check” information
and to obtain financial information legally by obtaining subpoenas and/or appropriate
releases; and 4) making false, unsubstantiated accusations against Mr. Boswell. The circuit
court determined that these “skeletal arguments” were insufficient to overcome
Respondents’ entitlement to qualified immunity. We agree.

                                             11
           This Court has ruled that “skeletal assertions” are insufficient to strip the
DHHR of qualified immunity:

              Also, like Payne, in discovery, respondent made the skeletal
              assertion that if D.H. were properly trained and supervised, the
              rape would not have occurred. This illusory and languid
              contention is no more sufficient to overcome the State’s
              immunity in this case than in Payne: “Respondents seem to
              argue simply that if the DHHR defendants were doing their job
              properly, this incident would not have occurred. . . . Although
              this overly simplistic analysis may be appealing in light of
              these tragic events, qualified immunity insulates the State and
              its agencies from liability based on vague or principled notions
              [of government responsibility].”

A.B., 234 W. Va. at 516 n.33, 766 S.E.2d at 775 n.33 (citing W. Va. Dep’t of Health and
Human Resources v. Payne, 231 W. Va. 563, 574, 746 S.E.2d 554, 565 (2013)).

               We also note that these skeletal assertions are at odds with the record. It is
undisputed that Respondents referred this matter to law enforcement; that law enforcement
officials obtained Mr. Boswell’s financial information from various banks pursuant to a
subpoena; and that Mr. Boswell did not deny that he held himself out to be Mrs.
Vanderpool’s son, nor did he deny that all of the Vanderpools’ real estate and bank
accounts that were placed in trust during the criminal investigation eventually went to him.

               Finally, we agree with the circuit court’s conclusion that Ms. Stanley is
entitled to qualified immunity based on W. Va. Code § 9-6-2(d), which provides:

                     No adult protective services caseworker may be held
              personally liable for any professional decision or action
              thereupon arrived at in the performance of his or her official
              duties as set forth in this section or agency rules promulgated
              thereupon: Provided, That nothing in this subsection protects
              any adult protective services worker from any liability arising
              from the operation of a motor vehicle or for any loss caused by
              gross negligence, willful and wanton misconduct or intentional
              misconduct.

              In so ruling, we agree with the circuit court’s determination that:

              The actions undertaken by Adult Protective Services and Ms.
              Stanley were precisely the kind of actions and investigation
              intended by the Legislature’s adoption and pronouncement of

                                             12
             the rights, duties and responsibilities of Adult Protective
             Services and its workers under [W. Va. Code § 9-6-2 et seq.].
             Therefore the Court finds that even when considering the facts
             of this matter in a light most favorable to the plaintiffs, the
             plaintiffs have failed to clearly establish any constitutional or
             statutory violations, nor any fraudulent, malicious or
             oppressive conduct on [the] part of the defendants.

             Based on the foregoing, we affirm the circuit court’s January 14, 2019, order.

                                                                                Affirmed.

ISSUED: May 26, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

NOT PARTICIPATING:

Justice Margaret L. Workman

                                            13


TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-01-00429-CV

Kevin King, Appellant

v.

Advanced Micro Devices, Inc., Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT

NO. 99-02834, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING

PER CURIAM

	Appellant Kevin King has filed an unopposed motion to dismiss the appeal based on
the parties' settlement agreement.  We grant the motion and dismiss the appeal.  Tex. R. App. P.
42.1(a).

Before Chief Justice Aboussie, Justices Yeakel and Puryear

Dismissed on Appellant's Motion

Filed:   November 1, 2001

Do Not Publish


W. HUDSON CONNERY, JR., ET. AL., )
                                 )    Davidson Chancery
     Plaintiffs/Appellants,      )    No. 95-3865-I
                                 )
VS.                              )
                                 )
COLUMBIA/HCA HEALTHCARE          )    Appeal No.
CORPORATION, ET. AL.,            )    01A01-9709-CH-00529
                                 )
     Defendants/Appellees.       )

               IN THE COURT OF APPEALS OF TENNESSEE
                                                     FILED
                          AT NASHVILLE
                                                   July 1, 1998
     APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY
                   AT NASHVILLE, TENNESSEE      Cecil W. Crowson
                                               Appellate Court Clerk
        HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

Robert S. Patterson, #6189
Patricia Head Moskal, #11621
BOULT, CUMMINGS, CONNERS & BERRY, PLC
414 Union Street, Suite 1600
P.O. Box 198063
Nashville Tennessee 37219
ATTORNEYS FOR PLAINTIFFS/APPELLANTS

Paul S. Davidson, #11789
Charles W. Cook, III, #14274
STOKES & BARTHOLOMEW, P.A.
2800 SunTrust Center
424 Church Street
Nashville Tennessee 37219
ATTORNEYS FOR DEFENDANTS/APPELLEES

                              XXXXXXX.

                                 HENRY F. TODD
                                 PRESIDING JUDGE, MIDDLE SECTION

CONCURS:
WILLIAM C. KOCH, JR., JUDGE
WIILLIAM B. CAIN, JUDGE
W. HUDSON CONNERY, JR., ET. AL., )
                                 )                     Davidson Chancery
     Plaintiffs/Appellants,      )                     No. 95-3865-I
                                 )
VS.                              )
                                 )
COLUMBIA/HCA HEALTHCARE          )                     Appeal No.
CORPORATION, ET. AL.,            )                     01A01-9709-CH-00529
                                 )
     Defendants/Appellees.       )

                                    OPINION

       Twenty former employees of “HealthTrust,” a ____________ sued HealthTrust and its

“successor in interest,” Columbia Health Care Corporation, to recover share of stock (or the

value thereof) which they had purchased with earned bonuses and for the value of shares of stock

due some of the plaintiffs due them upon discharge. Two of the plaintiffs nonsuited, leaving

eighteen.

       Fourteen of the plaintiffs also sued on the theory that their rights were based upon their

“discharge with cause.”

       The plaintiffs sought a declaration of their rights and damages for breach of contract,

breach of fiduciary duty and conversion.

       All plaintiffs moved for summary judgment in regard to their claims for declaratory

relief, for breach of contract, and for the vesting of stock upon “change of control.” The

defendants moved for summary judgment upon the same issues. The Trial Court overruled

plaintiffs’ motion and sustained defendants’ motion.

       The defendants moved for summary judgment upon the remaining claims, i.e., the

termination without cause basis of the suits of fourteen of the plaintiffs. The Trial Court

                                              -2-
sustained the motion and dismissed the suits of all eighteen plaintiffs who have appealed and

presented the following issues:

              I.     Whether the plaintiffs’ rights to the restricted stock at
              issue vested upon the occurrence of the merger between
              HealthTrust notwithstanding the fact that HealthTrust’s
              Compensation Committee determined that the stock would
              not best upon the occurrence of the merger and the plaintiffs
              were so notified orally and in writing. Also, in this regard:

                       (a)     Whether HealthTrust negated the automatic
               vesting provision in the 1990 Plan, which provided that a
               participant’s right to restricted stock vests automatically
               unless HealthTrust provides otherwise in an “Award
               agreement,” when on October 31, 1994, Health Trust’s
               Compensation Committee met and awarded the restricted
               stock subject to the condition that the plaintiffs’ rights would
               not best upon the merger, and HealthTrust sent memoranda,
               worksheets, and held meetings with the plaintiffs wherein it
               informed them that the restricted stock would not best upon
               the occurrence of the merger.

                       (b)    Whether the Compensation Committee’s
               December 21, 1993, award of (i) the plaintiffs’ targeted bonus
               amounts (the amount of bonus they could earn at the end of
               the following fiscal year) and (ii) the plaintiffs’ right to elect
               a percentage of the actual bonus awarded at year end to
               purchase restricted stock constituted an award of restricted
               stock so as to prevent the Compensation Committee from
               being able to override the automatic vesting provision
               notwithstanding the fact that the bonuses and awards of
               restricted stock were not actually made until October 31,
               1994, and the operative plan allows the Compensation
               Committee the right to override and/or amend vesting
               provisions.

               II.     Whether plaintiffs Connery, Francis, Hobbs, Hough,
               Kennedy, Lambert, Martin, McCain, Moore, Price, Slusser
               and Wallace were terminated without cause so as to trigger
               their besting in the restricted stock at issue notwithstanding
               the fact that they admit that they were offered positions with
               Columbia, and they chose to resign rather than accept such
               positions.

               III.    Whether, to the extent that plaintiffs Connery, Francis,
               Hobbs, Hough, Kennedy, Lambert, Martin, McCain, Moore,
               Price, Slusser and Wallace seek to recover the restricted stock
               and/or its appreciated value based on the circumstances of
               their termination, they waived their right the restricted stock
               when they executed Severance Protection Agreements which
               provided that the benefits granted thereunder were in lieu of
               any other severance or termination pay.

                                                -3-
       It is undisputed that the plaintiffs were employees of HealthTrust during its 1994 fiscal

year which ended August 31, 1994, and were participants in a restricted stock purchase plans

called the “Total Direct Compensation Plan,” the “Amended and Restated HealthTrust, Inc.,”

and the “Hospital Company 1990 Stock Compensation Plan.”

       On October 15, 1991, the board of directors of Health Care created a “Compensation

Committee of its members. According to the Compensation Plan:

                      The purpose of the [1990 Plan] is to advance
                      the interests of [HealthTrust] and its
                      shareholders by providing incentives to
                      officers and other key employees or
                      individuals who contribute significantly to the
                      strategic and long-term performance
                      objectives and growth of [HealthTrust] by
                      their invention, ability, industry, loyalty or
                      exceptional service. The [1990] Plan is
                      intended not only as a means of attracting and
                      retaining outstanding management but also of
                      promoting a close identity of interests between
                      [HealthTrust’s] management and its
                      stockholders.

                     The 1990 Plan defines an “Award” of restricted stock
              as “An award or grant of . . . Restricted Stock . . . by the
              Committee to a participant under the Plan.” 1990 Plan, § 2
              (App.I, 18).

                     Notwithstanding the existence of the 1990 Plan, the
              1990 Plan states that, “No person shall have any claim or right
              to be granted an Award under the Plan, and no Participant
              shall have any right under the Plan to be retained in the
              employ of the Company.” 1990 Plan, § 18(a) (App.I, 39).

                      The 1990 Plan also provides that the Plan “shall be
              administered by the Committee, which shall have the power
              to interpret the Plan and, subject to its provisions, to
              prescribe, amend, waive and rescind rules and regulations, to
              determine the terms of Awards and to make all other
              determinations necessary or desirable for the Plan’s
              administration.” 1990 Plan, § 3 (App.I, 22-23) (emphasis
              added). Moreover, “all action taken by the Committee in the
              administration and interpretation of the Plan . . . shall be final
              and binding on all concerned.” 1990 Plan, § 3 (App.I, 22-23)
              (emphasis added). The Committee is also entitled to select
              the Participants to be granted Awards, determine the amounts
              and type or types of Awards to be made, set forth the terms,
              conditions and limitations applicable to each Award, and
              prescribe the form of the instruments embodying Awards

                                             -4-
made under the plan. 1990 Plan, § 4 (App.I, 237) (emphasis
added).

         With regard to Awards of restricted stock, such as the
restricted stock at issue in this case, Section 8 of the 1990
Plan provides specifically as follows:

               (a)      Awards of Restricted Shares
       or Restricted Units. Awards of Restricted
       Stock or Restricted Units may be granted
       under the Plan in such form and on such terms
       and conditions as the Committee may from
       time to time approve, including, without
       limitation, restrictions on the sale, assignment,
       transfer or other disposition or encumbrance
       of such shares or units during the Restricted
       Period and the requirement that the Participant
       forfeit such share or units back to the
       Company upon termination of employment for
       specified reasons within the Restricted Period.
       Restricted Awards may be granted alone, in
       addition to or in tandem with other Awards
       under the Plan.

                (b)    Restricted Period. At the time
       an Award of Restricted Stock or Restricted
       Units is made, the Committee shall establish
       the Restricted Period applicable to such
       Restricted Stock or Restricted Units during
       which period of time such Restricted Stock or
       Restricted Units are subject to a substantial
       risk of forfeiture in accordance with this
       Section and Section 13 hereof. During the
       Restricted Period, such Restricted Stock or
       Restricted Units may not be sold, assigned,
       transferred, made subject to gift, or otherwise
       disposed of, mortgaged, pledged or
       encumbered. Each Restricted Award may
       have a different Restricted Period. The
       Committee may, in its sole discretion, at the
       time a Restricted Award is made prescribe
       conditions for the incremental lapse of
       restrictions during the Restricted period and
       for the lapse or termination of restrictions
       upon the satisfaction of other condition than
       the expiration of the Restricted Period with
       respect to all or any portion of the Restricted
       Stock or Restricted Units. The Committee
       may also, in its sole discretion, shorten or
       terminate the Restricted Period or waive any
       conditions for the lapse or Period or waive any
       conditions for the lapse or termination of
       restrictions with respect to all or any portion
       of the Restricted Stock or Restricted Units.
                            ----

                             -5-
                      As is stated in the TDC Plan, the actual bonus
               awarded to each employee at the end of the fiscal year was
               contingent upon the satisfaction of the objectives established
               by the Compensation Committee and the plan participants.

                . . . . the actual bonus would not be determined until the end
               of the fiscal year, and that the bonus could be above or below
               the target incentive opportunity amount, and HealthTrust
               would now know how much stock to award until year end.

       On October 4, 1994, HealthTrust decided to merge with Columbia HCA and announced

this decision to its employees.

       On October 31, 1994, the Compensation Committee agreed to award plaintiffs their 1994

cash incentive bonuses under the 1990 plan under the following restrictions:

                       (i)      for vesting on August 31, 1996, (ii)that
                       vesting of awards will not accelerate pursuant
                       to Section 18 (h) of such Stock Compensation
                       Plan in the event of a “change in control” and,
                       (iii) for such further terms and conditions as
                       shall be set forth in an award agreement as
                       executed by the Committee Chairman or his
                       designee on behalf of the Committee; and

                       RESOLVED, that the proper officers of the
                       Corporation be and they hereby are authorized
                       to take all such actions and execute all such
                       agreements or other documents as they deem
                       necessary or advisable or convenient or proper
                       to carry out the intent of the foregoing
                       resolution.

       In January, 1994, HealthTrust distributed to its employees a memorandum and worksheet

with “Election Forms.”

       On February 28, the board of directors of HealthTrust adopted and approved the plan of

its Compensation Committee.

       On April 24, 1994, Health Care merged with Columbia HCA.

                                               -6-
                                XXXXXXXXX.

                                          _________________________________
                                          HENRY F. TODD
                                          PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

_____________________________
WILLIAM C. KOCH, JR., JUDGE

_____________________________
WILLIAM B. CAIN, JUDGE

                                    -7-


540 U.S. 996
MULLENSv.UNITED STATES.
No. 03-6595.
Supreme Court of United States.
November 3, 2003.

1
Appeal from the C. A. 11th Cir.

2
Certiorari denied.


250 Md. 121 (1968)
242 A.2d 145
PAPPALARDO, ET UX.
v.
LLOYD, ET AL.
[No. 222, September Term, 1967.]
Court of Appeals of Maryland.
Decided May 28, 1968.
The cause was argued before HAMMOND, C.J., and MARBURY, BARNES, FINAN and SINGLEY, JJ.
*122 Harvey B. Steinberg, with whom were Paul H. Mannes and Stephen R. Pagenhardt on the brief, for appellants.
William A. Ehrmantraut, with whom were Edward C. Donahue, John J. Mitchell and James P. Gleason, on the brief, for Allan S. Lloyd, M.D., one of appellees; Joseph B. Simpson, Jr., with whom were Vivian V. Simpson, H. Algire McFaul, William T. Wood and Simpson & Simpson on the brief, for Suburban Hospital Association, Inc., other appellee.
HAMMOND, C.J., delivered the opinion of the Court.
The appeal is from dismissal of a malpractice suit in the Circuit Court for Montgomery County against a doctor and a hospital for failure of the plaintiffs Angelo Pappalardo and Grace, his wife, to depose as ordered. On March 6, 1966, a deposition notice was given the plaintiffs for April 6. Defendants were advised that the husband was in the foreign service in Greece and the wife in the hospital in Boston, and it was agreed that upon her discharge from the hospital she would depose. However, on June 6 plaintiffs' counsel wrote defendants' counsel that the wife was going to Greece on June 10 directly from Boston and could not return to Washington so that the deposition would have to await her return from overseas. The case was scheduled for trial on December 14, 1966. Plaintiffs sought a year's delay to a time when they would be in this country. Defendants moved to require plaintiffs to submit to depositions or have their case dismissed. Plaintiffs' request for delay in trial and defendants' motion as to dismissal were argued together. Judge Anderson, on January 4, 1967, ordered that the case stand dismissed on April 1, 1967, if the plaintiffs failed to submit to depositions in Montgomery County on or before that date or, in the alternative, if they failed to appear in the American Embassy in Athens prior to that date, that they deposit $2,000 as security for payment of costs including the cost of taking the depositions in Greece.
On March 27 plaintiffs filed a suggestion of removal, and an order removing the case to Garrett County was signed on April 3, 1967. Plaintiffs moved the Circuit Court for Garrett *123 County on April 19 to modify the order of January 4, by extending the time within which depositions could be taken to August 1, 1967. A supporting affidavit recited that plaintiffs had been unable to comply with the order of January 4 "and seek relief * * * from this Court, since they are scheduled to return to the country at the end of June and will then be available for depositions taken in the ordinary manner," and it also said:
"detailed interrogatories and answers thereto have been filed [on November 9, 1966]. Plaintiffs have given defendants authorizations to obtain all applicable medical records, and defendants have substantial records of their own. There is no reason why defendants cannot proceed with depositions of other individuals involved, the names of whom have all been disclosed in the answers to the interrogatories. When plaintiffs return to this country in June of this year, trial preparations will be that much further along.
"Plaintiffs have incurred substantial medical expense * * *. To burden them with a Grecian trip for counsel would be grossly unfair, and counsel is advised and represents to the Court that the plaintiffs cannot afford this expense."
Judge Hamill granted the motion ex parte on April 19, amending the order of January 4 by setting aside the dismissal of the cause on April 1, 1967, and by extending the time for depositions to August 1, 1967.
After defendants on May 9 had filed a motion opposing the modification of the order of January 4, Judge Hamill heard the parties and finding indications of "certain irregularities and improper notices on the record of this case" remanded the case to Montgomery County for clarifying determinations. The Circuit Court for Montgomery County found no irregularities or improper notices and on June 28 sent the case back to Garrett County.
Plaintiffs' counsel on July 12 notified counsel for defendants that the plaintiffs would be available for depositions in Montgomery County on July 17, 18, 19, and 20 and that if no date were otherwise agreed upon plaintiffs would appear on July *124 17, 1967, at four o'clock in the afternoon at the office of counsel for one of the defendants in Rockville. Plaintiffs and their lawyer did so appear on July 17 but counsel for the defendants refused to take their depositions.
On July 19 Judge Hamill ordered that "it appearing that the plaintiffs herein did not appear for the taking of their depositions on or before April 1, 1967, * * * this case stands dismissed, with prejudice, nunc pro tunc, as of April 1, 1967," and "that the Order of this Court * * * [of April 19], amending and setting aside the Order * * * of January 4, 1967, be, and the same is hereby declared to be null, void and of no effect." The plaintiffs appeal from this last order.
The parties have spent much effort in arguing respectively that the order of January 4, requiring the deposit of $2,000 as security for costs if the plaintiffs' deposition was not taken in Montgomery County by April 1 was unreasonable and invalid, and that it was reasonable and valid. We see no need to decide this point. It is clear that the trial court may exercise its sound discretion to dismiss a case for unwarranted refusal to depose. Peck v. Toronto, 246 Md. 268. We assume for the purpose of decision only, that the order of January 4 was proper and legal and, although both the Circuit Court for Montgomery County and the Circuit Court for Garrett County treated the case as extant and viable after April 1, we shall assume further, again for the purpose of decision, that in legal actuality the case stood dismissed as of April 1. Under Maryland Rule 625 the court "for a period of thirty days after the entry of a judgment, or thereafter pursuant to motion filed within such period" has revisory power and control over a judgment. On April 19, within the thirty days of April 1, the day the case stood dismissed on our assumption, Judge Hamill set aside the dismissal and extended the time for the taking of depositions to August 1, 1967. Before August 1 plaintiffs appeared for the giving of their depositions. Under these circumstances and in the absence of any showing, indeed of any claim, of prejudice to the defendants, we think Judge Hamill abused his discretion in dismissing the case on July 19 nunc pro tunc to April 1. His order giving the plaintiffs until August 1 was in full force *125 and effect when the plaintiffs in apparent good faith and under reasonable conditions as to time and place offered to depose. The dismissal should not have been ordered.
Order reversed and case remanded for further proceedings, costs to abide the result.


291 U.S. 163 (1934)
HELVERING, COMMISSIONER OF INTERNAL REVENUE
v.
CANFIELD.[*]
No. 158.
Supreme Court of United States.
Argued December 13, 1933.
Decided January 15, 1934.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
*164 Mr. H. Brian Holland, with whom Solicitor General Biggs and Messrs. Sewall Key and Andrew D. Sharpe were on the brief, for the Commissioner of Internal Revenue.
Mr. Edwin H. Cassels, with whom Messrs. Barry Gilbert and Adolphus E. Graupner were on the brief, for Canfield and Thorsen.
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
These cases present the question of the construction of the following provisions of § 201 of the Revenue Act of 1921, 42 Stat. 228:
"Sec. 201. (a) That the term `dividend' when used in this title . . . means any distribution made by a corporation to its shareholders or members, whether in cash or in other property, out of its earnings or profits accumulated since February 28, 1913, . . .
"(b) For the purposes of this Act every distribution is made out of earnings or profits, and from the most recently accumulated earnings or profits, to the extent of such earnings or profits accumulated since February 28, 1913; but any earnings or profits accumulated or increase in value of property accrued prior to March 1, 1913, may be distributed exempt from the tax, after the earnings and profits accumulated since February 28, 1913, have been distributed. . . ."
The respondent in No. 158 and the petitioner in No. 212 are stockholders of the West Side Lumber Company, a California corporation. The question is as to the amount *165 properly taxable against them as their respective shares of a dividend of $5,100,000 paid by that company on April 14, 1923.
The findings of fact state that in addition to its original capital of $1,500,000, the company had a surplus on March 1, 1913, of $4,332,684.78. Its profits and losses in the following years  ending on February 28 in each year  were as follows: 1914, a profit of $4,594.62; 1915, a loss of $193,139.67; 1916, a loss of $211,707.32; 1917 to 1923, inclusive, and from February 28, 1923 to April 14, 1923, profits aggregating $2,450,688.30. Prior to the dividend here involved, and for the years 1918 to 1923, the company had paid dividends amounting to $1,290,000.
The question is as to the proper treatment of the losses of 1915 and 1916. If these losses, over the profits of 1914, are not treated as reducing the surplus of March 1, 1913, but are charged against the subsequent profits, the entire amount of that surplus, or $4,332,684.78 was distributable exempt from the tax after the profits subsequent to February 28, 1913, had been distributed. On this basis, for which the taxpayers contend, the profits accumulated after February 28, 1913, would be deemed to amount to $2,050,435.93, leaving subject to the tax, after deducting prior dividends, the sum of $760,435.93.
If the losses of 1915 and 1916, over the profits of 1914, are treated as reducing the surplus of March 1, 1913, there remained of that surplus, on February 28, 1916, the sum of $3,932,432.41, which was distributable exempt from the tax after the subsequent profits had been distributed. With this application of the losses of 1915 and 1916, the subsequent profits subject to tax, after deducting prior dividends, amounted to $1,160,688.30.
The Board of Tax Appeals adopted the latter view and directed the determination of deficiencies accordingly. 24 *166 B.T.A. 480. That decision was overruled by the Circuit Court of Appeals for the Seventh Circuit as to the respondent Canfield in No. 158, 62 F. (2d) 751, and was sustained by the Circuit Court of Appeals for the Ninth Circuit as to the petitioner Thorsen in No. 212, 65 F. (2d) 234. The cases come here on certiorari.
In deciding between these conflicting views, the outstanding, and we think the controlling, fact is that on February 28, 1916, the surplus of March 1, 1913, had actually been diminished by losses. The company continued in business after March 1, 1913, and exposed its accumulated profits to the hazard of that business. On February 28, 1914, the company still had those profits and an additional profit of $4,594.62. But in the next two years the company lost $404,846.99, so that the surplus of March 1, 1913, was invaded. It is inaccurate to say that this was merely a matter of bookkeeping. Under the findings of fact the losses must be deemed to have been actual losses, not mere bookkeeping entries. Hence, the decrease of the preexisting surplus was actual  as real as the preexisting surplus itself, as real as the subsequent profits. The surplus of March 1, 1913, was the amount of net assets over liabilities including capital stock.[1] When the losses of 1915 and 1916 were suffered, the net assets of March 1, 1913, shrunk accordingly.
In the presence of that inescapable fact, the question is not whether the company could distribute, as being surplus of March 1, 1913, what no longer remained of that surplus  a manifest impossibility  but whether the statute entitled the company to treat subsequent profits as restoring what had been lost of the surplus of March 1, 1913, so that, to the extent of that replacement, the subsequent profits could be distributed to stockholders free *167 of tax. That the question is one of such a replacement would be strikingly evident if the whole of the surplus of March 1, 1913, had been lost and an attempt had been made to treat later profits as restoring it. The fact that only a part of the surplus was lost does not alter the question as related to that part.
The argument that the surplus of March 1, 1913, constituted capital is unavailing. We are not here concerned with capital in the sense of fixed or paid-in capital, which is not to be impaired, or with the restoration of such capital where there has been impairment.[2] No case of impairment of capital is presented. We are dealing with a distribution of accumulated profits. Nor is it important that the accumulated profits, as they stood on March 1, 1913, constituted capital of the company as distinguished from the gains or income which the company subsequently realized.[3] When a corporation continued in business after March 1, 1913, the dividends it later declared and paid to its stockholders, whether out of current earnings or from profits accumulated prior to that date, constituted income to the stockholders, and not capital, and were taxable as income if the Congress saw fit to impose the tax. Lynch v. Hornby, 247 U.S. 339. The provision of the Act of Congress under consideration was a "concession to the equity of stockholders" with respect to receipts as to which they had no constitutional immunity. There is no question here of the receipt of "capital."
The fundamental contention of the taxpayers is that the statute created two distinct periods for tax purposes; that the accumulations for each period constituted "a *168 fixed and static amount, not to be changed by happenings after the end of the period." That the statute does relate to two periods, the dividing line being March 1, 1913, and that the periods are distinct, is obvious. But it does not follow because there are two distinct periods that the accumulations for each period constitute "a fixed and static amount" and are to remain unaffected despite the vicissitudes of business. To attribute to the accumulated profits or surplus of March 1, 1913, embarked in a continued business, such a static condition is to ignore the course of business and to impute to the Congress an intention to consider, for tax purposes, the existence of that surplus as still continued notwithstanding its actual diminution or exhaustion. Such an intention to disregard realities so as to afford immunity from a tax is not lightly to be ascribed to the taxing authority. The "equity of stockholders," which we said in Lynch v. Hornby, supra, the Congress probably had in view, might reasonably require freedom from taxation on receiving a distribution of the accumulated profits of March 1, 1913, where those profits remained intact, but that equity is not apparent when those profits had been lost in whole or in part and immunity is sought from the taxation of an equivalent amount of profits subsequently earned.
Paragraphs (a) and (b) of § 201 disclose a single purpose and are to be construed in harmony with each other. They show that the Congress was careful to arrange its plan so that the right to receive, free of tax, a distribution of surplus accumulated prior to March 1, 1913, should not be exercised in such a fashion as to permit profits accumulated after that date to escape taxation. To that end the Congress provided that "every distribution is made out of earnings or profits, and from the most recently accumulated earnings or profits, to the extent of such earnings or profits accumulated since February 28, 1913." Then follows the exemption which is strictly limited to a *169 distribution of profits accumulated prior to March 1, 1913. Nothing is said as to a restoration of those profits out of subsequent earnings if the former have been lost.
The argument for the stockholders stresses the word "accumulated." We think that the expression is made to carry too heavy a burden. The argument is substantially the same as that which is based on what seems to us to be an artificial conception of the two periods. What had been "accumulated" prior to March 1, 1913, was obviously not immune from the risk of loss. It is urged that the same rule should be applied whether the losses in the subsequent years preceded or succeeded the making of profits. But the actual course of events is not to be ignored. If there had been profits immediately after March 1, 1913, sufficient in amount to absorb later losses incurred before the time of distribution, it is manifest that the profits accumulated prior to March 1, 1913, would have remained intact. The case is different where, in the absence of such profits, losses necessarily diminish the prior accumulations. Thus, in the instant case there were no profits accumulated after March 1, 1913, and prior to February 28, 1916, except the small amount in 1914 which was wiped out by the losses of the two succeeding years. The profits from February 28, 1916, to February 28, 1919, amounted to $327,134.45. If there had been a distribution of these profits on February 28, 1919, it could not have been maintained that they constituted part of the surplus existing on March 1, 1913, or that they should escape taxation on the theory that they made good prior losses which had actually reduced that surplus. And the same is true of the profits subsequently made. Administrative practice appears to have been in accord with this view. See A.R.M. 82, 3 Cumulative Bulletin 36 (1920).
Our conclusion is that the judgment of the Circuit Court of Appeals for the Seventh Circuit in No. 158 *170 should be reversed and that of the Circuit Court of Appeals for the Ninth Circuit in No. 212 should be affirmed.
No. 158, reversed.
No. 212, affirmed.
NOTES
[*]  Together with No. 212, Thorsen v. Helvering, Commissioner of Internal Revenue, certiorari to the Circuit Court of Appeals for the Ninth Circuit.
[1]  Edwards v. Douglas, 269 U.S. 204, 214; Willcuts v. Milton Dairy Co., 275 U.S. 215, 218.
[2]  Compare Hadden v. Commissioner, 49 F. (2d) 709.
[3]  Southern Pacific Co. v. Lowe, 247 U.S. 330; Gulf Oil Corp. v. Lewellyn, 248 U.S. 71; Lucas v. Alexander, 279 U.S. 573; Old Colony R. Co. v. Commissioner, 284 U.S. 552.


527 F.2d 662
UNITED STATES of America, Plaintiff-Appellee,v.Melvin LEMMONS, Defendant-Appellant.
No. 74--1874.
United States Court of Appeals,Sixth Circuit.
Argued April 14, 1975.Decided Dec. 24, 1975.As Amended Jan. 14, 1976.Rehearing and Rehearing En BancDenied Feb. 13, 1976.

Wilfred C. Rice, Detroit, Mich., for defendant-appellant.
Ralph B. Guy, Jr., U.S. Atty., Richard L. Delonis, Asst. U.S. Atty., Detroit, Mich., for plaintiff-appellee.
Before WEICK and McCREE, Circuit Judges, and CECIL, Senior Circuit Judge.
McCREE, Circuit Judge.

1
This is an appeal from conviction in a nonjury trial under a one-count indictment charging appellant with unlawful possession and intent to distribute 118.5 grams of heroin. 21 U.S.C. § 841(a)(1).1 We affirm.

2
The relevant facts are as follows.  On January 16, 1973, Special Agent DePottey obtained a warrant for the search of a store building occupied by a retail clothing business known as 'Imported Fashions of Tomorrow' located at 9300 Woodward Avenue, Detroit, Michigan.  Agent DePottey returned to his office with the warrant and placed it in a file.  The next day DePottey was placed on extended limited duty status for medical reasons and was restricted to office activities.  Sgt. Teshka of the Michigan State Police executed the warrant at about 3 p.m. on January 22, 1973, five days after the warrant was issued.

3
The search warrant authorized a search of the first floor and basement area of the store that was 'designated by the number 9300 above the doorway.'  Before the search commenced, Sergeant Teshka showed a copy of the search warrant to Alice Jones who identified herself to him as the person in charge of the store.

4
Shortly after the search was started, one of the officers discovered 16 packets of heroin in a file cabinet in an office area located at the rear of the store.  Miss Jones was shown the packets and was shown where they were found.  Within a few minutes, Mr. Lemmons arrived at the store.  He identified himself as one of the owners of the business and told one of the officers that he felt he 'had a right to see some papers that gave (the officers) permission to be on the premises.'  After the store had been thoroughly searched, both Miss Jones and Mr. Lemmons were placed under arrest and Lemmons' fingerprints were taken.

5
A one-count indictment was returned on April 4 charging appellant and Miss Jones with violation of 21 U.S.C. § 841(a)(1).  On October 30, the district court conducted an evidentiary hearing on motions for a bill of particulars, for disclosure of the identity of an informant, and for suppression of evidence. On January 24, 1974, the district court denied the motions.

6
A trial to the court without a jury commenced on February 26, 1974.  At trial, Sgt. Mowery, a latent print specialist employed by the Michigan State Police, testified that fingerprints found on 2 of the 16 foil packets were attributable to Lemmons.  The initial fingerprint analysis had been performed by Sgt. Nichols at the Michigan State Police Laboratory, but he died before trial.  Accordingly, Sgt. Mowery, who had verified Nichols' findings at the laboratory, gave the testimony inculpating Lemmons.  On the basis of Sgt. Mowery's testimony that appellant's prints were found on the foil packets, the district judge found Lemmons guilty of the offense charged.

7
On appeal we identify three issues that require discussion: (1) whether the five day delay in the execution of the warrant invalidated the search and required suppression of the foil packets containing the heroin; (2) whether probable cause existed for Lemmons' arrest, at which time his fingerprints were obtained; and (3) whether Sgt. Mowery's testimony about the fingerprint identification was admissible.

8
In United States v. Wilson, 491 F.2d 724 (6th Cir. 1974), we considered whether a six day delay in the execution of a search warrant required suppression of the evidence obtained.  After reviewing the cases, we said that the better reasoned rule 'allowed some delay where the cause or causes of the delay could appropriately be held to be 'reasonable." 491 F.2d at 725.  In Wilson we determined that since the informant had purchased drugs on the day the warrant was issued and the Government wanted to conceal the identity of the informant, the delay in executing the warrant was reasonable.  Although we do not condone a delay of the magnitude that occurred here, we determine that since the delay was caused by the ill health of DePottey, the agent-in-charge, it was reasonable.  We also find that probable cause still existed for the search on January 22, 1973, because the warrant was executed within ten days as required by Fed.R.Crim.P. 41(c), and because there is nothing in the record to indicate that the circumstances related in the agent's affidavit affording probable cause for the issuance of the search warrant had changed before it was executed.

9
In determining that the officers had probable cause to arrest Lemmons, the district court relied upon the following circumstances:

10
(T)he search warrant (which was based on information provided by a reliable informant) was valid; that the government in executing the search warrant discovered narcotic drugs, hand guns and other evidence that narcotics were being sold from a certain business premises (9300 Woodward Ave., Detroit, Michigan); that the narcotics were not in an area open to the public, but rather in a desk used in the conduct of the business; and that defendant Lemmons owned the building searched and operated the business in the beforementioned premises.

11
In Brinegar v. United States, 338 U.S. 160, 175--76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), the Supreme Court stated that probable cause to arrest existed where the facts and circumstances within an officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.  Although we regard the probable cause issue in this case as a close one, we hold that the officer had sufficient information to afford him probable cause to believe that Lemmons possessed the narcotics found in the file cabinet.  Lemmons' status as a part owner of the business combined with the fact that the narcotics were found in a filing cabinet in the office area of the store not accessible to the general public were sufficient to cause a reasonable person to have believed that Lemmons and Miss Jones, the store manager on duty at the time of the search, were in control of the office area and possessed the drugs found there.  See, e.g., Johnson v. Wright, 509 F.2d 828 (9th Cir. 1975), where the court held that it was proper to arrest three occupants of an automobile when the officer discovered a sawed-off shotgun in the vehicle.  In so holding, we do not give blanket approval to the indiscriminate arrest of store proprietors solely because contraband is discovered on the premises.

12
Appellant next contends that the government failed to prove the chain of custody of the foil packets and that the district court erroneously relied on the business records exception to the hearsay rule (as well as violated appellant's Sixth Amendment confrontation clause rights) in permitting Sgt. Mowery to testify to the similarity between appellant's fingerprints and those found on the foil packets.

13
In another criminal appeal, United States v. Russo, 480 F.2d 1228 (6th Cir. 1973), cert. denied, 414 U.S. 1157, 94 S.Ct. 915, 39 L.Ed.2d 109 (1974), we stated that:

14
The Federal Business Records Act was adopted for the purpose of facilitating the admission of records into evidence where experience has shown them to be trustworthy.  It should be liberally construed to avoid the difficulties of an archaic practice which formerly required every written document to be authenticated by the person who prepared it.  (Citations omitted.)  The Act should never be interpreted so strictly as to deprive the courts of the realities of business and professional practices.  (Citations omitted.)

15
480 F.2d at 1240.

16
In this case Sgt. Mowery testified that standard laboratory procedure was followed by Sgt. Nichols who originally received the foil packets.  Nichols obtained lifts from some of the packets, noted the origin of each of the lifts, determined that the prints were attributable to Lemmons, and then, also following standard laboratory procedure, requested Sgt. Mowery to verify his opinion.  Mowery testified at trial that it was his opinion that the latent prints found on the foil packets matched Lemmons' fingerprints.  We hold that, under the circumstances, the business records exception to the hearsay rule,  28 U.S.C. § 1732, was properly relied upon by the district court for the purpose of admitting Mowery's testimony concerning the fingerprint evidence.

17
With respect to appellant's confrontation clause challenge to the admission of this testimony, we hold that because the original examiner was dead and because the trier of fact had a satisfactory basis in Mowery's testimony for evaluating the fingerprint evidence, there was no violation of appellant's rights guaranteed by the Sixth Amendment.  See Phillips v. Neil.,452 F.2d 337, 346--47 (6th Cir. 1971), cert. denied, 409 U.S. 884, 93 S.Ct. 96, 34 L.Ed.2d 141 (1972).  We find no merit to the chain of custody issue since the laboratory examination that established that Lemmons' fingerprints were on the foil packets had been concluded before the tinfoil and lifts were turned over to another officer who did not appear at the trial.

18
Appellant also contends that the search of the office area in the store was improper because the search warrant stated that the premises to be searched were located at 9300 Woodward Avenue and the drugs were found in an area of the store located at 9304 Woodward.  The record reveals that the store occupied both the 9300 and 9304 addresses although there was only one public entrance which was located at 9300 Woodward.  The 9304 entrance was blocked by a display cabinet.  Originally, there were separate businesses in 9300 and 9304, and they were separated by a wall.  However, at the time of the search, an archway had been opened between the two addresses and the store used both portions of the building for the business.  The search warrant also made it clear that the store 'Imported Fashions of Tomorrow,' including the basement and first floor area, were to be searched for drugs.  In United States v. Jordan, 349 F.2d 107 (6th Cir. 1965), we upheld the search of the second floor of a two-story house over appellant's objection that the second floor was a separate living unit over which he had no control.  We observed that appellant was the sole lessee listed on the rental agreement, that the utilities for both floors were contracted for in appellant's name, that he acknowledged the premises to be his residence and that there was no external indication that the house might be divided into more than one living unit before the search was undertaken.  As one court has pointed out: the Fourth Amendment 'safeguard is designed to require a description which particularly points to a definitely ascertainable place so as to exclude all others.'  People v. Watson, 26 Ill.2d 203, 186 N.E.2d 326 (1962).  We hold that the warrant in this case was sufficiently definite to authorize a search of the entire store.

19
Appellant also contends that he was denied his constitutional right to a speedy trial.  The indictment was returned against him on April 4, 1973, a motion to suppress was filed on April 26, an evidentiary hearing covering parts of four days commenced on October 30, the district court denied the motion for suppression and further motions for discovery in a written order on January 24, 1974, the trial was held on February 26, 27, and 28, 1974, and the district judge found appellant guilty at the conclusion of the trial.  We agree with the district court's conclusion that: 'The record does not show that the government purposely delayed the trial, nor that defendants have been unduly prejudiced in preparing their defense.  The death of (a defense witness) may have been a setback, but the record when viewed in its entirety does not indicate that defendants cannot receive a fair trial.  Barker v. Wingo (407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1971)), United States v. Marion, 404 U.S. 307 (92 S.Ct. 455, 30 L.Ed.2d 468) (1971).'

20
Appellant argues several other issues: (1) whether the search warrant affidavit contained sufficient information to amount to probable cause, (2) whether correct procedure was followed when the search warrant inventory was given to appellant's attorney instead of to him, (3) whether the district court erred in denying appellant's motions for discovery, and (4) whether there is sufficient evidence to sustain the verdict.  After careful consideration, we determine that the above issues are without merit and do not require detailed discussion.

21
Accordingly, the judgment of conviction is affirmed.

1
 21 U.S.C. § 841(a)(1) provides:
(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally--
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; . . ..


                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 21, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-50656
                        Conference Calendar

UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE TEPEZANO-AVILA,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. 3:98-CR-301-ALL
                       --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Jose Tepezano-Avila (Tepezano), federal prisoner # 85628-

080, appeals the district court’s denial of his 18 U.S.C.

§ 3582(c)(2) motion, wherein he argued that Amendment 668 to the

Sentencing Guidelines should be applied to the calculation of his

offense level under U.S.S.G. § 2D1.1(a)(3).

     Amendments to the Sentencing Guidelines may not be applied

retroactively upon a motion under § 3582(c)(2) unless they are

specifically set forth in U.S.S.G. § 1B1.10(c).     See U.S.S.G.

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                           No. 05-50656
                                -2-

§ 1B1.10(a), p.s. (Nov. 2005).   Amendment 668 is not listed in

§ 1B1.10(c) and therefore may not be applied retroactively under

Tepezano’s motion.   See United States v. Drath, 89 F.3d 216, 218

(5th Cir. 1996)(amendment not listed in § 1B1.10(c) “cannot be

given retroactive effect in the context of a § 3582(c)(2)

motion”).   Accordingly, the district court did not abuse its

discretion when it denied Tepezano’s § 3582(c)(2) motion.

     AFFIRMED.


                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1

                United States Court of Appeals
                                For the Seventh Circuit
                                Chicago, Illinois 60604

                            Submitted September 17, 2019*
                             Decided September 20, 2019

                                        Before

                        FRANK H. EASTERBROOK, Circuit Judge

                        ILANA DIAMOND ROVNER, Circuit Judge

                        AMY C. BARRETT, Circuit Judge

No. 18‐2444

UNITED STATES OF AMERICA,                      Appeal from the United States District
     Plaintiff‐Appellee,                       Court for the Northern District of Illinois,
                                               Eastern Division.

      v.                                       No. 97‐cr‐510‐18

JAMES A. YATES,                                Elaine E. Bucklo,
     Defendant‐Appellant.                      Judge.

                                      ORDER

       James Yates, a federal prisoner, appeals the denial of his motion under 18 U.S.C.
§ 3582(c)(2) for a sentence reduction based on the retroactive application of Amendment
782 to the United States Sentencing Guidelines. We affirm.

       Yates was a high‐ranking “governor” of the Gangster Disciples, and in that
capacity directed cocaine sales for the gang and ordered violence to enforce its

      *  We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. See FED. R. APP. P 34(a)(2)(C).
No. 18‐2444                                                                             Page 2

hierarchy. A jury found him guilty of engaging in a continuing criminal enterprise,
see 21 U.S.C. § 848(a), and the district judge sentenced him to a statutory mandatory
term of life in prison under § 848(b). We affirmed Yates’s conviction and sentence on
direct appeal. See United States v. Jackson, 207 F.3d 910, 919–20, 922 (7th Cir.), cert. denied
in part, 531 U.S. 953 (2000).

        Yates later moved to reduce his sentence under § 3582(c)(2). He relied on
Amendment 782, which lowered the base offense level for nearly all drug crimes,
including convictions for a continuing criminal enterprise that involved cocaine. The
district judge denied Yates’s request because his sentence was set by a statutory
minimum, so Amendment 782 was irrelevant.

       On appeal from that denial, Yates generally argues that the amendment changed
his guidelines range, so the statutory minimum no longer applies. But he
misapprehends § 3582(c)(2), which authorizes a district court to reduce a sentence based
on a guidelines range subsequently lowered by the Sentencing Commission. See Koons
v. United States, 138 S. Ct. 1783, 1788–89 (2018); Dillon v. United States, 560 U.S. 817,
825–26 (2010). Because Yates’s sentence was set by a statutory minimum, it was not
“based on” a guidelines range that later changed. The Commission did not alter the
statutory minimum under § 848(b), so his sentence cannot be reduced under
§ 3582(c)(2).

       Yates also argues that his sentence must be reduced because it was based on facts
that increased the statutory minimum sentence (i.e., his leadership role and the drug
quantity) without having been submitted to a jury. See Alleyne v. United States, 570 U.S.
99, 108 (2013). But § 3582(c)(2) does not authorize a plenary resentencing nor “implicate
the Sixth Amendment right to have essential facts found by a jury beyond a reasonable
doubt.” Dillon, 560 U.S. at 825, 828. In any event, Alleyne does not apply retroactively, so
Yates may not use it to collaterally attack his sentence. See Crayton v United States,
799 F.3d 623, 624 (7th Cir. 2015).

                                                                                AFFIRMED


TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-11-00793-CR

Charles Jerome Hutchinson, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
NO. D-1-DC-10-900019, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING

O R D E R

PER CURIAM

	Appellant Charles Jerome Hutchinson filed his notice of appeal on November 9,
2011.  This Court notified appellant on February 23, 2012 that he had not paid or made arrangements
to pay for the reporter's record and that his appeal would be considered without the reporter's record
and his brief would be due March 26, 2012, if he did not respond to the notice.  To date, appellant's
brief has not been filed.
	On April 12, 2012, this Court ordered appellant's retained counsel, Lance C. Hamm,
to file appellant's brief no later than April 27, 2012.  On May 7, 2012, appellant's counsel filed a
Motion to Extend Time to File Appellant's Brief.  We grant the motion in part and order Lance C.
Hamm to file appellant's brief on or before June 1, 2012.  If the brief is not filed by that date, counsel
may be required to show cause why he should not be held in contempt of court.

	It is ordered on May 16, 2012.

Before Chief Justice Jones, Justices Pemberton and Rose
Do Not Publish