     Case: 10-11106     Document: 00511521795         Page: 1     Date Filed: 06/27/2011

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 27, 2011
                                     No. 10-11106
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

WAYLON MCDONALD,

                                                  Defendant-Appellant

                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:10-CR-21-2

Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
        Waylon McDonald appeals the sentence imposed after he pleaded guilty
to bank robbery and conspiracy to commit bank robbery. He was sentenced as
a career offender to a total of 262 months in prison. He challenges his career-
offender status, the district court’s finding that he obstructed justice, and the
denial of credit for acceptance of responsibility.
        First, McDonald contends that he was wrongly sentenced as a career
offender because his prior Texas conviction for evading arrest in a motor vehicle

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-11106    Document: 00511521795      Page: 2   Date Filed: 06/27/2011

                                  No. 10-11106

was not a “crime of violence” under U.S.S.G. § 4B1.2(a)(2). In United States v.
Harrimon, 568 F.3d 531, 534-37 (5th Cir. 2009), we held that the Texas crime of
evading arrest in a motor vehicle is a “violent felony” under 18 U.S.C.
§ 924(e)(2)(B)(ii). The relevant residual definitions of “violent felony” under
§ 924(e)(2)(B)(ii) and “crime of violence” under § 4B1.2(a)(2) are interchangeable.
See United States v. Moore, 635 F.3d 774, 776 (5th Cir. 2011). Harrimon thus
forecloses McDonald’s contention that the prior crime was not a crime of
violence.
      In his second contention, McDonald argues that his offense level should
not have been increased for obstruction of justice. This contention is not
relevant to McDonald’s offense level, which was determined by his career-
offender status. See § 4B1.1(b). However, the finding of obstruction is relevant
to the denial of credit for acceptance of responsibility, so we address it.
      McDonald wrote several letters to his fellow conspirator, Inequa Rushing,
asking her to state falsely under oath that McDonald knew nothing about the
bank robbery until she came out of the bank with the money. This conduct falls
squarely within the ambit of obstruction of justice. See § 3C1.1, comment. (n.4).
The district court did not commit any error, clear or other, by finding obstruction
of justice. See United States v. Pofahl, 990 F.2d 1456, 1481-82 (5th Cir. 1993).
      McDonald finally contends that he should have been awarded credit for
acceptance of responsibility despite his obstruction.      Absent extraordinary
circumstances, obstruction of justice shows that a defendant has not accepted
responsibility, and the denial of credit for acceptance of responsibility will be
affirmed unless it is “without foundation.” United States v. Juarez-Duarte, 513
F.3d 204, 211 (5th Cir. 2008). The record soundly refutes McDonald’s assertion
that he abandoned his efforts to obstruct justice.           He thus shows no
extraordinary circumstances warranting credit for acceptance of responsibility,
and there was a firm foundation for the denial of that credit. See id. The district
court’s judgment is AFFIRMED.

                                        2


     17-1021-cv
     Wynn v. NYCHA

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
     BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
     WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
     MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
     NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
     OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1           At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 3   10th day of July, two thousand eighteen.
 4
 5   Present:        ROSEMARY S. POOLER,
 6                   ROBERT D. SACK,
 7                   SUSAN L. CARNEY,
 8                              Circuit Judges.
 9
10   _____________________________________________________
11
12   BRIAN WYNN, JOHN WILLIAMS, AWILDA
13   GUZMAN, JOSE OTERO, KEVIN FULTON,
14
15                                 Plaintiffs-Appellants,
16
17                         v.                                                   17-1021-cv
18
19   NEW YORK CITY HOUSING AUTHORITY,
20   LOCAL 237 INTERNATIONAL
21   BROTHERHOOD OF TEAMSTERS,
22
23                           Defendants-Appellees.
24   _____________________________________________________
25
26   Appearing for Appellants:     Lee S. Nuwesra, New York, N.Y.
27
28   Appearing for Appellees:      Roger Briton, Jackson Lewis P.C., Melville, N.Y., for New York
29                                 City Housing Authority
30
 1                                  Alexandra J. Howell, Archer, Byington, Glennon & Levine LLP
 2                                  (Robert T. McGovern, on the brief), Melville, N.Y., for Teamsters
 3                                  Local 237
 4
 5   Appeal from the United States District Court for the Southern District of New York (Schofield,
 6   J., Scheindlin, J.).
 7
 8        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 9   AND DECREED that the orders of said District Court are AFFIRMED.
10
11            Appellants Bryan Wynn, John Williams, Awilda Guzman, Jose Otero, and Kevin Fulton
12   appeal from two orders of the District Court for the Southern District of New York: a March 8,
13   2017 opinion (Schofield, J.) granting summary judgment to Appellees New York City Housing
14   Authority (“NYCHA”) and Local 237 of the International Brotherhood of Teamsters (“Local
15   237”) and a January 16, 2016 order (Scheindlin, J.) denying class certification. We assume the
16   parties’ familiarity with the underlying facts, procedural history, and specification of issues for
17   review.
18
19          We review grants of summary judgment de novo, viewing evidence in the light most
20   favorable to the non-movants. See Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015).
21
22           Appellants are Black and Hispanic individuals who work or worked for NYCHA as
23   “Caretakers P,” and they purport to represent a class of other persons working as Caretakers P.
24   Their definition of the class has varied during the litigation, but, stated most broadly, it appear to
25   include all minority Caretakers P employed by NYCHA beginning in April 2010. Along with
26   other NYCHA employees, Caretakers P are represented in collective bargaining by Local 237.
27   Caretakers P are paid less than the “prevailing wages”—that is, the wages earned by their
28   counterparts in the private sector, “Plasterer Helpers.” Appellants, pointing to the fact that over
29   90% of Caretakers P are Black and/or Hispanic, claim that NYCHA’s failure to pay them the
30   wages of Plasterer Helpers and Local 237’s alleged failure to fight for NYCHA to do so is due to
31   racial discrimination in violation of Title VII and the New York City Human Rights Law.
32
33           As a preliminary matter, we note that both the parties and the district court operated
34   under the seemingly incorrect assumption that New York law only authorizes prevailing wages
35   for public sector workers in the “Competitive Class.” See Wynn v. New York City Housing
36   Authority, 14 Civ. 2818, 2017 WL 933094 at *1 (S.D.N.Y. Mar. 8, 2017). We know of no
37   authority—and, when prompted, the parties could not point to any—indicating that prevailing
38   wages are only available to workers in the Competitive Class. Under New York Labor Law
39   § 220(3)(a), all “laborers, workmen, or mechanics” working for a contractor on public works
40   projects are entitled to “the prevailing rate of wages.” Cf. Golden v. Joseph, 307 N.Y. 62, 67
41   (1954); Casey v. Catherwood, 311 N.Y.S.2d 562, 563 (N.Y. 2d Dep’t 1970), aff’d, 28 N.Y.2d
42   702 (1971).
43
44           The question in this case is not whether Appellants and other Caretakers P were entitled
45   to prevailing wages. The question is whether NYCHA’s failure to pay those wages (or advocate
46   to the Department of Citywide Administrative Services to classify Caretakers P appropriately) or

                                                       2
 1   Local 237’s failure to advocate for those wages can be attributed to racial discrimination.
 2   Appellants have failed to produce evidence that Local 237 was motivated by discriminatory
 3   intent in taking any action related to Caretaker P wages. Accordingly, Appellants’ claims cannot
 4   survive summary judgment. See Holcomb v. Iona College, 521 F.3d 130, 138 (2d Cir. 2008)
 5   (plaintiffs must introduce evidence establishing that an adverse action “occurred under
 6   circumstances giving rise to an inference of discriminatory intent” to survive summary judgment
 7   on a Title VII claim); Ya-Chen Chen v. City University of New York, 805 F.3d 59, 76-77 (2d Cir.
 8   2015) (plaintiff must present “evidence from which a reasonable jury could conclude that
 9   discrimination on the basis of race…played a role in the [] Defendants’ actions” to survive
10   summary judgment on a NYCHRL claim).
11
12           Appellants’ theory of discrimination rests entirely on a comparison with another group of
13   NYCHA employees, called Mason Helpers, who also assist with construction. In contrast to
14   Caretakers P, the majority of Mason Helpers identify as white and all of them are paid prevailing
15   wages. However, Appellants have produced insufficient evidence to allow a fact-finder to
16   determine that Mason Helpers’ responsibilities are as similar to their private sector equivalents as
17   those of Caretakers P to Plasterer Helpers. What evidence we do have reveals at least one major
18   difference between Mason Helpers and Caretakers P, namely, Mason Helpers must undergo
19   extensive training and pass an exam. On this record, a jury could not reasonably find that
20   defendants were motivated by discriminatory animus.
21
22           Because we affirm the district court’s dismissal of Appellants’ discrimination claims on
23   the merits, their challenge to the denial of class certification on those claims is moot. See Dobson
24   v. Hartford Financial Services Group, Inc., 389 F.3d 386, 402 (2d Cir. 2004).
25
26           We have considered the remainder of Appellants’ arguments and find them to be without
27   merit. Accordingly, the orders of the district court hereby are AFFIRMED. Each side to bear its
28   own costs.
29
30
31                                                         FOR THE COURT:
32                                                         Catherine O’Hagan Wolfe, Clerk
33

                                                      3


163 Mich. App. 634 (1987)
414 N.W.2d 903
KONDRATEK
v.
AUTO CLUB INSURANCE ASSOCIATION
Docket No. 90966.
Michigan Court of Appeals.
Decided July 27, 1987.
Harold I. Gach, and Wayne J. Miller, for plaintiff.
Brandt, Hanlon, Becker, Lanctot & McCutcheon (by John B. Geen), and MacArthur, Cheatham, Acker & Smith, P.C. (by James G. Gross), Attorneys of Counsel, for defendant.
Before: R.M. MAHER, P.J., and McDONALD and H.E. DEMING,[*] JJ.
PER CURIAM.
Defendant appeals as of right from *636 a February 18, 1986, judgment awarding plaintiff $11,669.29 for benefits, attorney fees, costs and statutory interest in this no-fault insurance action. MCL 500.3107(a); MSA 24.13107(a).
On July 6, 1983, plaintiff filed a complaint against defendant insurer and Linda Cardinale, a claims representative, seeking a declaratory judgment that vocational rehabilitation is a covered benefit under the no-fault act and that certain future rehabilitation expenses would be payable when incurred. Cardinale was later dismissed as a party defendant. Mediation was held on October 9, 1984, and the panel recommended an award to plaintiff of $19,500. Plaintiff accepted the mediation award; defendant rejected it.
A bench trial was held in August, 1985. The facts presented are not in substantial dispute. In May, 1976, plaintiff was seriously injured in an automobile accident. Plaintiff's back was injured and her lungs and vocal cords were crushed. For three years plaintiff was unable to talk. At trial plaintiff was able to speak in a hoarse whisper. The medical prognosis was that plaintiff's vocal cords were permanently deformed and that her voice would never return to normal. It is undisputed that plaintiff's no-fault insurer, defendant, received notice of the accident and, except for vocational rehabilitation expenses, paid what it determined to be covered benefits.
The trial court denied defendant's motion for the involuntary dismissal of plaintiff's complaint and for summary disposition under MCR 2.116(C)(9) and (10).
After closing arguments the trial court entered an oral opinion. Relying on a 1983 Attorney General opinion and a recent decision of this Court holding that "allowable expenses" as contained in *637 § 3107(a) of the no-fault act include vocational rehabilitation expenses, the trial court held that plaintiff was entitled to reasonably necessary vocational rehabilitation expenses. Bailey v DAIIE, 143 Mich App 223; 371 NW2d 917 (1985), lv den 424 Mich 867 (1986). OAG 1983-1984, No 6129, p 50 (February 24, 1983). The trial court found that defendant's conduct, taking a rigid approach in rejecting plaintiff's claim for vocational rehabilitation counselling, was unreasonable, and thus awarded plaintiff attorney fees. In addition, the court entered a declaratory judgment granting plaintiff tuition expenses estimated at $6,490 to be incurred upon her enrollment in a sign language interpreter program at Madonna College.
Defendant raises several issues on appeal. Defendant first urges us to reject Bailey, supra, and find that vocational rehabilitation expenses are not "allowable expenses" within the meaning of the no-fault act. We decline to do so as we feel Bailey was properly decided.
Defendant next requests this Court to adopt "definite operational guidelines" for determining the fact and extent of a claimant's entitlement to vocational rehabilitation. Section 3107(a) sets forth the standard for determining the fact and extent of a claimant's entitlement to benefits. Allowable expenses are "all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person's care, recovery, or rehabilitation." Thus two requirements are evident: (1) products, services and accommodations must be "reasonably necessary"; and (2) charges must be reasonable. We believe such a determination is a factual question best left to the trial courts, and therefore decline to set "definite operational guidelines." Moreover, a review of the record in the instant case indicates that the trial *638 court's factual findings regarding the reasonableness of plaintiff's claim were not clearly erroneous.
Defendant next contends that the trial court erred in awarding plaintiff attorney fees. Section 3148 of the no-fault act permits a prevailing claimant to recover attorney fees if the court finds that the insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment. Defendant challenges the trial court's determination that it unreasonably refused to pay plaintiff's claim. The trial court's finding of unreasonableness was based on three factors: (1) defendant steadfastly took a position that vocational rehabilitation expenses were not covered under the no-fault act despite a February, 1983, Attorney General opinion to the contrary; (2) defendant was aware of the decision reached in Bailey v DAIIE, supra, by the circuit court and by this Court in 1984 and 1985 respectively; and (3) despite defendant's observation of plaintiff's voice impairment during a November, 1983, deposition, defendant failed to take any action to investigate alternative proper rehabilitation programs for plaintiff.
A trial court's finding of unreasonable refusal or delay will not be reversed on appeal unless it is clearly erroneous. Nelson v DAIIE, 137 Mich App 226; 359 NW2d 536 (1984). We cannot say that the trial court clearly erred in awarding plaintiff attorney fees in the instant case.
Defendant next claims that the trial court erred in awarding plaintiff attorney fees under both the no-fault act and the mediation court rule, MCR 2.403(O). We agree, but on grounds different from those offered by defendant.
Defendant contends that an award of attorney fees under both the statute and court rules constitutes a double recovery for a single element of damages, and improperly allows plaintiff a windfall. *639 We disagree. The award of attorney fees under the no-fault act serves a purpose separate and distinct from that served by awarding fees under the mediation court rule. The attorney fees awarded under the no-fault act represent a penalty for an insurer's unreasonable refusal or delay in making payments. It is clear that the purpose of the penalty provision is to insure that the injured party is promptly paid. Darnell v Auto-Owners Ins Co, 142 Mich App 1; 369 NW2d 243 (1985). In comparison, the policy behind MCR 2.403(O) is to place the burden of litigation costs upon the party who insists upon trial by rejecting a proposed mediation award. Bien v Venticinque, 151 Mich App 229; 390 NW2d 702 (1986). Therefore, because each provision serves an independent policy and purpose, recovery of fees under both provisions may be appropriate. In the instant case, however, we find the award of attorney fees under the mediation court rule was erroneous.
A rejecting defendant may be assessed attorney fees and costs under MCR 2.403(O), unless he improves his position on the mediation award by more than ten percent. Here, in calculating the amount of the judgment recovered by plaintiff, the trial court included the $6,490 future expenses contained in its declaratory judgment. We find such an inclusion to be improper. These expenses have not yet been incurred, do not constitute a money judgment, and may vary in amount when and if they are actually incurred. Absent inclusion of the $6,490, the judgment is more than ten percent below the mediation award. Therefore, the trial court erred in awarding plaintiff attorney fees under the mediation court rule.
Although defendant claims error in the trial court's calculation of prejudgment interest, the parties have since stipulated to the correct calculation *640 and, therefore, we need not address this issue on appeal.
Remanded for modification of the judgment pursuant to this opinion.
NOTES
[*]  Circuit judge, sitting on the Court of Appeals by assignment.


Opinion filed February 5, 2009

Opinion filed February 5,
2009

                                                                        In The

    Eleventh
Court of Appeals
                                                                 ____________

                                                          No. 11-06-00146-CR
                                                     __________

                                OSCAR
PENA DE LA PAZ, Appellant
                                                             V.
                                        STATE
OF TEXAS, Appellee

                                          On
Appeal from the 32nd District Court
                                                          Nolan
County, Texas
                                                  Trial
Court Cause No. 10194-B

                                                 O
P I N I O N   O N   R E M A N D

Oscar
Pena De La Paz[1] was convicted
of two counts of aggravated sexual assault and one count of injury to a child,
was sentenced to seventy-five years confinement for each of the aggravated
sexual assault counts and twenty years confinement for the injury to a child
count, and fined $10,000 for each count.  We affirmed his conviction.  Delapaz
v. State, 229 S.W.3d 795 (Tex. App.CEastland
2007).  The Court of Criminal Appeals reversed, finding that the State failed
to carry its burden of proof to admit hospital records containing statements
made by the victim to a nurse and social worker, and remanded to this court for
a harm analysis.  De La Paz v. State, No. PD-1168-07, 2008 WL 2437648
(Tex. Crim. App. June 18, 2008).  Finding no harm, we affirm.
                                                             I.
Background Facts
Angie
Medina and De La Paz lived together and had five children, including seven-year-old
K.D.  One afternoon, Medina went shopping with her mother and niece and left De
La Paz with the children.  When she returned home, the kids were playing
outside, and De La Paz was inside with the door locked.  K.D.=s demeanor was
conspicuous.  She was quiet and did not want to talk.  De La Paz
unlocked the door for Medina, and when she went inside, he told her that he had
given the kids a bath.  She thought this was odd because he had never bathed
the girls before B
even though she had asked him to B
and because he put their same clothes back on.  She started to put clean
clothes on the children, but De La Paz told her to wait.  He asked her what
would happen if one of their daughters was molested.  De La Paz then told
Medina that K.D. was bleeding from her Amiddle
spot.@
De
La Paz had blood on his fingers, and K.D. had bloodstained toilet paper in her
vagina.  He did not want Medina to take K.D. to the hospital because he was
concerned that the police and CPS would become involved and would take their
children away, but Medina took K.D. to the Sweetwater hospital=s emergency room anyway.
Medina called De La Paz from the hospital to update him on K.D.=s condition.  He then told
her that K.D. had complained about a black boy injuring her.  De La Paz also
put K.D.=s sister on
the phone.  In the background, he could be heard telling her to say that K.D.
injured herself when she fell out of a tree.

Sweetwater
law enforcement officials were contacted.  They interviewed Medina at the
hospital.  She consented to a search of her apartment.  When the police
arrived, De La Paz and two children were present.  De La Paz told the officers
that K.D. had been injured while playing outside and that she had come into the
apartment bleeding.  The officers found no sign of any blood dripping on the
front or back porches, on the tile floor, on the furniture, or on the
doorknobs.  They did find damp, bloodstained clothing in the bathroom,
bloodstains on the toilet seat, and bloodstained toilet paper in a trash can.
De La Paz also told the officers that he had tried to clean K.D.  The bathtub,
however, was dry, and it had dried sand in the bottom.  The police asked De La
Paz to come to the police station for an interview.  He complied and provided
them with a written statement in which he blamed K.D.=s injuries on an unknown black boy.
Meanwhile,
K.D. was transferred to Hendrick Medical Center for further treatment.  She was
diagnosed with a second degree laceration that went approximately one inch into
her vagina and  required surgical intervention to repair.  Hospital personnel
suspected sexual abuse.  Pat Rollins, a Sexual Assault Nurse Examiner from
Hendrick Medical Center, testified that she was unable to obtain a history from
K.D. because her injury was life-threatening.  When Rollins attempted to talk
to K.D., she would Aclam
right up and get real scared.@
Rollins described K.D.=s
injury as what you would expect to find in a person who had delivered a baby,
that it was Aclear
evidence of blunt force trauma or penetration,@
and that it was not consistent with a fall.  Dr. Michelle Johnson, a
gynecologist, treated K.D.  She testified that K.D.=s injuries were consistent with penetration by
an adult penis and were probably not caused by a fall.
Two
days after her surgery, K.D. told a hospital social worker and a hospital nurse
that her father had injured her.  De La Paz was subsequently arrested.  He gave
a second statement in jail.  This time, he claimed that he accidentally cut
K.D. while bathing her.  He stated that K.D. was jumping around in the tub and
that he Areached down
by her legs and pulled her hard.  I did not have this planned.  I didn=t plan to go to her
private.  I guess that is when I cut her open.@
De La Paz contended that he was scared and that he tried to clean up the blood.
At
trial, De La Paz testified that he bathed the kids while Medina was shopping.
He put their same clothes back on to avoid having to search for clean clothes.
After Medina returned home, he heard a knock.  He went to the door and saw
K.D.  She had blood on her fingers and told him that she was bleeding.  He
discovered that she was bleeding from her vagina.  He and Medina tried to clean
up the blood with toilet paper.  When the bleeding persisted, Medina told him
that she was taking K.D. to the doctor.  De La Paz denied trying to discourage
her from doing so.

De
La Paz testified that his first written statement was true.  He testified that
the second statement was not.  De La Paz claimed he was pressured into
admitting that he had poked K.D. with his fingers in exchange for a promise of
community supervision.  The State confronted De La Paz with inconsistencies
between his first written statement and his trial testimony, such as what he was
doing when K.D. knocked on the door.  He blamed these on Medina, claiming that
she asked him to lie.
                                                             II.
Issues on Remand
De
La Paz argues that he was harmed by the admission of K.D.=s medical records and that
he received ineffective assistance of counsel because counsel did not object to
inadmissible evidence.
                                                                     III.
Analysis
A.
The Erroneously Admitted Evidence.
The
State offered medical records from Hendrick Medical Center and Rolling Plains
Memorial Hospital that were filed under affidavit.  These records included
notes from Melissa Foss, a social worker employed by Hendrick, and Casey
Wasson, a Hendrick nurse.  Foss interviewed K.D. in her hospital room and asked
what happened.  K.D. told Foss that her dad had poked her with his Apee-pee@ and with his fingers.
Foss asked K.D. if he had done this before, and K.D. responded, AA lot.@  Foss asked if her father
did this to any of her brothers or sisters, and K.D. shook her head and said, A[J]ust me.@  Foss asked Wasson to come
into K.D.=s room, and
K.D. repeated her accusation.  Foss and Wasson made separate notes of their
conversation with K.D. and included them in K.D.=s
medical records.
De
La Paz objected to Foss=s
and Wasson=s notes,
contending that their admission violated his confrontation clause rights.[2]
The trial court sustained the objection in part.  The trial court allowed the
State to introduce records containing Foss=s
and Wasson=s questions
and K.D.=s responses
but ordered the State to redact any other third party statement.  On appeal, De
La Paz contended that this was error because he was not allowed to
cross-examine either Foss or Wasson.[3]  We held that
the trial court did not err because Foss=s
and Wasson=s notes
were not testimonial statements.  Delapaz, 229 S.W.3d at 799.  The Texas
Court of Criminal Appeals reversed, holding that the State had failed to carry
its burden to establish that the records were admissible.  2008 WL 2437648 at
*8.

B.
Standard of Review.
The
violation of a defendant=s
right of confrontation is subject to a harmless-error analysis.  Delaware v.
Van Arsdall, 475 U.S. 673 (1986).  We must reverse the conviction unless we
determine beyond a reasonable doubt that the error did not contribute to it.  Tex. R. App. P. 44.2(a).  The emphasis
of a harm analysis is not the propriety of the trial=s outcome but the integrity of the process
that led to the conviction.  Harris v. State, 790 S.W.2d 568, 587 (Tex.
Crim. App. 1989).  The question is not whether the jury verdict was supported
by the evidence.  The question is the likelihood that the constitutional error
was actually a contributing factor in the jury=s
deliberations in arriving at a verdict.  Wells v. State, 241 S.W.3d 172,
177 (Tex. App.CEastland
2007, pet. ref=d).
Courts
have identified several factors to consider in this instance:  (1) how
important was the statement to the State=s
case; (2) whether the statement was cumulative of other evidence; (3) the
presence or absence of evidence corroborating or contradicting the statement on
material points; and (4) the overall strength of the State=s case.  Scott v. State,
227 S.W.3d 670, 690 (Tex. Crim. App. 2007).  We may also consider the source
and nature of the error, the amount of emphasis by the State on the statement,
and the weight that a juror would probably give it.  Id.  Finally, we
presume that the damaging potential of any cross-examination would have been
fully realized had the witness been present to testify.  Baldree v. State,
248 S.W.3d 224, 231 (Tex. App.CHouston
[1st Dist.] 2007, pet. ref=d).
C.
Did the Notes Contribute to De La Paz=s
Conviction?
1.  The State=s
Case Without the Notes.
K.D.
suffered a second degree laceration to her vagina while she was in De La Paz=s care that was consistent
with penetration by an adult penis. De La Paz had blood on his hands; he acted
suspiciously; he discouraged Medina from changing K.D.=s clothes even though he had just bathed her;
he discouraged Medina from taking K.D. to the hospital; he encouraged his other
daughter to tell Medina that K.D. injured herself when she fell; he provided
two inconsistent statements prior to trial; and his trial testimony was in some
respects at odds with both of these.  The physical evidence was inconsistent
with both written statements and his trial testimony.  Except for
De La Paz=s
claim that an unknown black boy injured K.D., there was no other evidence
implicating anyone else.  This evidence is sufficient to sustain his
conviction.

2.  The Erroneously Admitted Evidence.
After
the State called its last witness, it read the following hospital record
excerpts:
Reviewed
chart and spoke with charge nurse regarding admit dx of vaginal laceration and
alleged sexual assault.  Went to room to talk with patient.  Mom present in room.
Asked mom to talk with patient for a few minutes in private.  Mom went to
family room.  Began conversation with patient talking about school and she told
me all about her school, teacher and friends.  I then asked patient about what
happened on Saturday before she came to the hospital.  She stated, AI bleeding and daddy gave
me a bath.@  When
asked why she was bleeding, she stated that ADaddy
poked me.@  When asked
what she was poked with, patient stated Ahis
fingers.@

I
then asked patient, ADid
daddy poke you with anything else?@
Patient stated Awith
his pee-pee.@  I then
asked patient, AHas he
done this to you before?@
Patient shook head yes and looked at the floor.  I asked, AHas he done this one time,
two times, or a lot of times?@
Patient replied Aa
lot.@  I asked patient
if her dad also did this to her brothers and sisters?  Patient shook her head
no and stated, Ajust
me.@

I
called out to the nurses station for charge B
I called out to the nurses station for Charge Nurse C. Wasson, RN, to be a
witness.

Casey
asked patient, ACan
you tell me what happened?@
Patient looked at the floor and stated, ADaddy
poked me with his pee-pee.@
I asked patient, AWhat
else?@  And patient
stated, AHis fingers.@  I asked patient, AWhere was your mom?@  Patient stated, AAt the store.@  Casey left room and I
told patient I needed to make some phone calls and would check on her later.
Met with mom to discuss conversation with patient.  Asked mom if patient had
told her what had happened.  Mom shook her head yes and told me how her husband
acted very funny when she got home from the grocery store.  Dad bathed patient
which he never does, per mom, and was not concerned with the amount of blood
loss.  Told mom to wait until Monday to take to the doctor.  Mom decided to go
ahead and take patient to hospital because six-year old daughter told her
something bad happened to patient.

. .
. .

Called
to patient room by M. Foss, LSW.  Mom outside room.  M. Foss, LSW asked
patient, ACan you tell
Ms. Casey what you just told me?@
I asked patient, ACan
you tell me what happened?@
The patient looked down at a pen she was holding and stated, AMy daddy poked me.@  When asked by myself, AWith what?@  Patient still looking
down stated, AWith his
pee-pee.@  M. Foss,
LSW asked, AAnd what
else?  Was there anything else?@
Patient stated, AHis
fingers.@  And then I
left the room.

Mom
called out stating patient wanted to speak to us.  L. Calvert, RN and myself in
at bedside.  Patient up in bed coloring.  Patient states, AI saw blood.@  I asked, AWhere did you see the
blood?@  Patient
states, AIn the
toilet.@  L. Calvert
asked, AWhere else?@  Patient states, AIn the bathtub.@  L. Calvert asked, ADid you take a bath before
or after you saw the blood?@
Patient states, Aafter.@  L. Calvert asked, ADo you know how the blood
got there?@  Patient
states, Ano@ and nods her head.

3.  The Importance of the Medical Notes.
The
State made only a passing reference to the notes in its opening and did not ask
any witness about them during its case.  It did read them to the jury after
calling its last witness, and it asked De La Paz during cross-examination about
K.D.=s accusations.
But the State started its closing argument by describing the notes as Athe most important evidence
that you have heard in this case.@
The State reread K.D.=s
statement that she was bleeding because her daddy poked her with his Apee-pee@ and fingers and spent the
balance of its closing summarizing the evidence and arguing that it supported
this statement.  The notes were, therefore, important to the State=s case.
4.  Whether the Notes were Cumulative.
The
notes were not cumulative of other evidence.  K.D. did not testify; no other
witness testified that K.D. blamed De La Paz for her injuries; and in fact,
Medina and Rollins both testified that K.D. would not say what had happened.
Finally, there was no other evidence that K.D. was assaulted more than once.
5.  The Presence or Absence of Corroboration or Contradiction.
The
notes were corroborated.  The medical evidence established that K.D.=s injury was caused by
blunt force trauma or penetration, that it occurred while she was in De La Paz=s care, and that K.D.=s injury was consistent
with penetration by an adult penis but not consistent with a fall.  Medina and
De La Paz corroborated K.D.=s
description of being left alone with him while Medina went shopping.  De La Paz
was the only adult male in the apartment at the time, he had blood on his
fingers, and he acted suspiciously.  The only contradictory evidence was De La
Paz=s denial.
6.  The Strength of the State=s Case.

The
State=s case was
strong.  As noted, medical evidence B
excluding the notes B
indicated that K.D. had been recently sexually assaulted.  De La Paz was
directly implicated by his presence and behavior.  There was no evidence that
K.D. was with any other adult at the time, and De La Paz=s credibility was
questionable at best.
7.  The Effect of Impeaching the Absent Witnesses.
There
is nothing in the record to establish what impeachment evidence De La Paz would
have offered if either Wasson or Foss had testified.  De La Paz suggests that
cross-examination might have established evidence of coaching and that
cross-examination might have developed evidence of K.D.=s state of mind or demeanor.  The record does
not indicate that either area of inquiry would have been fruitful.
The
State filed a motion to determine K.D.=s
unavailability as a witness, and the trial court conducted an evidentiary
hearing.  The State called Leann Hicks, a counselor, as a witness.  At the time
of the hearing, she had counseled with K.D. for four and one-half months.
Hicks testified that K.D. was extremely shy and withdrawn and that having to
testify in front of her father would cause emotional harm.  She described K.D.
as delayed academically, cognitively, socially, and emotionally and testified
that K.D. has no concept of time.  Hicks stated that K.D. could describe what
had happened to her and that she understood the difference between the truth
and a lie.  Hicks also testified that K.D. told her that De La Paz had abused her
since she was six years old.  De La Paz=s
cross-examination primarily addressed Hicks=s
qualifications as an expert and her testimony about the harm K.D. would suffer
if forced to testify.  Nothing in that examination supports any inference that
K.D. was coached to implicate her father or that her ability to perceive and
relate events was impacted by her state of mind or demeanor.
De
La Paz filed a motion to suppress K.D.=s
videotaped statement, and the trial court held a second evidentiary hearing.
The State called Peggy Parrott as a witness.  Parrott was a child interviewer
at the Advocacy Center, and she interviewed K.D.  That interview was recorded,
and De La Paz=s
motion sought to suppress it.  De La Paz=s
cross-examination primarily addressed Parrott=s
compensation by the district attorney=s
office.  Nothing in that examination supports an inference that K.D. was
coached or that her state of mind or demeanor impacted her ability to recall
and relate events.[4]

We
have previously noted that De La Paz did not brief, and therefore did not
preserve, whether he was improperly denied the opportunity to cross-examine K.D.
However, even if we consider this, the record does not support any inference
that her cross-examination would have negatively impacted the State=s case.  K.D. implicated
her father to Foss and Wasson at the hospital,  during her interview with
Parrott, and during her counseling sessions with Hicks.  K.D.=s contention was consistent
each time.  De La Paz contended that K.D. had lied previously and that this led
to a CPS investigation, but that evidence came in without cross-examining her.
We
are satisfied beyond a reasonable doubt that the notes did not contribute to De
La Paz=s conviction.
The strength of the State=s
case, De La Paz=s
behavior the day of the event, and his questionable credibility satisfy us that
the notes did not move the jury from a state of unpersuasion to a state of
persuasion.  See Davis v. State, 203 S.W.3d 845, 853 (Tex. Crim. App.
2006).
D.
Did the Notes Contribute to De La Paz=s
Punishment?
De
La Paz next argues that the notes harmed him during the punishment phase of the
trial because they are the only evidence that he penetrated K.D. on multiple
occasions.  De La Paz reasons that whether it occurred once or on
multiple occasions would be extremely significant.  Because the
seventy-five-year sentences are near the top of the allowable punishment range
for aggravated sexual assault and the twenty-year sentence is the maximum
permissible punishment for injury to a child, the notes clearly impacted the
jury=s punishment
determination.
The
State introduced no other direct evidence during the guilt/innocence phase of
trial that De La Paz abused K.D. on any other occasion although there was
evidence of prior problems.  Medina and De La Paz both acknowledged that they
had been previously investigated by CPS.  The State called Hicks as its sole
witness during the punishment phase of the trial.  She described the effect
this incident has had and will continue to have on K.D.  She echoed a portion
of the hospital notes by testifying that, when she asked K.D. why she was in
counseling, K.D. responded that it was because her daddy poked her with his
finger and Apee-pee.@  Hicks did not, however,
repeat her pretrial testimony that K.D. claimed her father had abused her since
she was six or otherwise suggest that De La Paz abused K.D. more than on this
one occasion.

During
its initial closing argument, the State made no reference to the medical notes
or to K.D.=s statement
that De La Paz abused her more than once.  Instead, the State referred only to
the single episode giving rise to K.D.=s
hospitalization and asked the jury to consider its impact on her.  The State
also asked the jury to consider De La Paz=s
prior conviction for burglary of a building, his admission that he slapped
Medina around the week before this incident, and his inconsistent statements he
gave police.  During final summation, the State reminded the jury that it had
heard from K.D. through the medical records but did not make any reference to
anything in those records.
We
are convinced beyond a reasonable doubt that the notes did not contribute to De
La Paz=s punishment.
The jury=s punishment
assessment is severe, but De La Paz=s
prior criminal record, his admitted act of spousal abuse, the harm he caused
K.D., his refusal to accept responsibility, and his attempt to cover up the
incident are more than sufficient to explain the jury=s decision.  That conclusion is supported by
the fact that the State made no reference to K.D.=s
multiple-event statement during the punishment phase of the trial and did not
offer a similar statement through Hicks=s
testimony.  De La Paz=s
first issue is overruled.
E.
Was Trial Counsel Constitutionally Ineffective?
De
La Paz next argues that his trial counsel was constitutionally ineffective
because, even though he objected to Wasson=s
and Foss=s notes, he
did not object to a discharge summary prepared by Dr. Paige H. Lemasters that
referred to those notes and was also contained within the medical records.  De
La Paz=s stated
concern is that we might find that the failure to object to the discharge
summary rendered the admission of the medical notes harmless.  De La Paz=s concern is appropriate
but, because we have not factored the discharge summary into our analysis, the
lack of an  objection did not result in harm; therefore, trial counsel was not
constitutionally ineffective.  De La Paz=s
second issue is overruled.
                     IV. Holding
The
judgment of the trial court is affirmed.

February 5, 2009                                                                     RICK STRANGE
Publish.  See Tex.
R. App. P. 47.2(b).                                    JUSTICE
Panel consists of:  Wright, C.J.,
McCall, J., and Strange, J.

[1]Appellant=s
name is spelled differently in the indictment, the judgment, the notice of
appeal, and throughout other places in the record.  We point out that we have
spelled appellant=s name, ADe La Paz,@ because that is the way the Court of Criminal Appeals
has spelled it in its opinion in this case.

[2]U.S. Const. amend. VI.

[3]De La Paz=s
brief referred to his inability to cross-examine K.D., but we found that this
point was not preserved because it was neither raised in the trial court nor
briefed in our court.  Delapaz, 229 S.W.3d at 798 n.2.

[4]The trial court denied the motion to suppress, but the
State did not introduce the interview into evidence at trial.


           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 22, 2009
                                     No. 08-50793
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

CRAE ROBERT PEASE

                                                   Plaintiff-Appellant

v.

FIRST NATIONAL BANK, Giddings; BILLY MORGAN; T MARK ROGSTADT

                                                   Defendants-Appellees

                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:07-CV-631

Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges.
EDITH H. JONES, Chief Judge:*
       Crae Robert Pease sued Appellees for deprivation of his Fourth, Fifth, and
Fourteenth Amendment rights. Because Pease has not stated a claim cognizable
in federal court, we affirm the district court’s dismissal of all claims.
                                   I. BACKGROUND
       In 2002, Pease executed a note to First National Bank, Giddings, for
$111,236.36.      Pease also signed an extension of real estate lien note for
$110,204.77. The bank recorded a deed of trust to secure these loans. Some

       *
         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. 08-50793

time later, the Bank provided notice to Pease that he had defaulted on the loan
and then gave notice of a substitute trustee’s sale on April 7, 2006.                     Billy
Morgan, an officer of the Bank, appointed T. Mark Rogstadt, an attorney
employed by the Bank, as substitute trustee to sell the property. Pease filed a
suit to quiet title to the property in state court on April 28. The property was
sold on May 5, and Lee County Sheriff Rodney Meyer gave notice to Pease to
vacate the property.
       The Bank counterclaimed for forcible detainer in the quiet title action. On
October 17, 2006, Judge Reva Towslee-Corbett held that the bank was the owner
and title holder and ordered Pease to vacate the property. At the time of this
appeal, Pease continued to occupy the property.
       In federal court, Pease sued the Bank, Morgan, Rogstadt, Sheriff Meyer,
and Judge Towslee-Corbett, alleging that the home foreclosure deprived him of
his rights and property without due process through fraud and deceit in violation
of the Fourth, Fifth, and Fourteenth Amendments. He sought $150,000 in
damages and $350,000 in punitive damages. The district court granted the
Bank’s, Morgan’s, and Rogstadt’s Motion to Dismiss, finding that Pease had not
adequately alleged that these defendants were state actors for the purposes of
42 U.S.C. § 1983 and § 985.1            The district court also declined to exercise
jurisdiction over any pendent state claims.
       Pease appeals.
                                    II. DISCUSSION
       The grant of a motion to dismiss under Rule 12(b)(6) is reviewed de novo.
Kennedy v. Chase Manhattan Bank USA, NA, 369 F.3d 833, 839 (5th Cir. 2004).
We construe the complaint in the light most favorable to the plaintiff and draw
all reasonable inferences in the plaintiff's favor. See Lovick v. Ritemoney Ltd.,

       1
         In a separate order that is not before us, the district court also dismissed all claims
against the remaining parties.

                                               2
                                  No. 08-50793

378 F.3d 433, 437 (5th Cir. 2004). To survive a Rule 12(b)(6) motion to dismiss,
the plaintiff must plead “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974
(2007).
      In his pro se brief to this court, Pease argues that the state counter-claim
in the quiet title action was improperly presented, brought in the wrong court,
and was never properly served on him. Because the state court did not have
jurisdiction to try a forcible detainer case, he contends that any resulting order
was void. He also claims that no landlord-tenant relationship existed between
himself and the Bank, that the promissory note and underlying deed of trust
were satisfied, and that the deed of trust had expired. This court will construe
a pro se appellant’s claims liberally rather than hold him to the standards
expected of lawyers. See United States v. Glinsey, 209 F.3d 386, 392 n.4 (5th Cir.
2000).    We, therefore, divide Pease’s arguments on appeal into two
categories—those attacking the procedure in the state court and those attacking
the merits of the state court’s judgment.
      Section 1983 claims arising from foreclosure proceedings are not new. The
Supreme Court has held that foreclosure procedures implicate the Fourteenth
Amendment only where there is at least some direct state involvement in the
execution of the foreclosure or seizure. See Fuentes v. Shevin, 407 U.S. 67, 70-71,
92 S. Ct. 1983 (1972). The Court has contrasted what types of actions will
amount to actions of the state. Compare Lugar v. Edmonson Oil Co., 457 U.S.
922, 102 S. Ct. 2744 (1982) (finding state action where a creditor’s ex parte
petition for a writ of prejudgment attachment was executed by the county
sheriff, sequestering the property pending adjudication of the claim) with Flagg
Bros., Inc. v. Brooks, 436 U.S. 149, 98 S. Ct. 1729 (1978) (holding that the
legislative approval of a private self-help remedy is not sufficient to convert
private conduct into state action). Fatal to Pease’s claims, this court has held
that “no significant state action is involved in non-judicial foreclosures under a

                                        3
                                  No. 08-50793

deed of trust.” Barrera v. Security Bldg. & Inv. Corp., 519 F.2d 1166, 1170 (5th
Cir. 1975).
      In Earnest v. Lowentritt, 690 F.2d 1198, 1201 (5th Cir. 1982), a property
was sold in a foreclosure action by sheriff’s sale. The original property owners’
§ 1983 and § 1985 claims were dismissed because they failed to meet the state
action requirement. The owners alleged, as in this case, that a conspiracy
existed between the state judge and the defendant sufficient to satisfy the state
action requirement.    This court held that “unlike the situation involving
pre-adjudicative seizures, the execution order permitting the sheriff to sell the
Earnest property was obtained only after notice to the debtor and the
opportunity to be heard concerning the merits of the seizure.” Id. at 1202.
Consequently, neither the forcible detainer action nor the actions of Appellees
in pursuing it gave rise to state action sanctionable under §§ 1983 and 1985.
      Pease’s suit fails for an additional reason. Pease claims that he is “not
complaining of the foreclosure, [he] is complaining that the bank, acting under
color of law (forcible detainer) conspired with state actors, Towslee-Corbett and
Meyers [sic] to implement an ejection action in a court that was without subject
matter jurisdiction.” In short, Pease asserts that his due process rights were
violated when the counterclaim was heard in the incorrect state court. Even
assuming that his jurisdictional arguments are correct, the Constitution’s
guarantee of due process is not offended when the wrong state court determines
a matter of state law. Cf. Kremer v. Chem. Constr. Corp., 456 U.S. 461, 483, 102
S. Ct. 1883, 1898 (1982) (holding that in the “full faith and credit” context that
“no single model of procedural fairness, let alone a particular form of procedure,
is dictated by the Due Process Clause”).
      Finally, to the extent Pease is challenging the merits of the foreclosure, we
will not entertain a collateral attack on the final judgment of a state court. As

                                        4
                                        No. 08-50793

we read the briefs and the record, Pease’s state court case is over.2 In light of the
finality of the state court proceedings, Pease’s claims are barred by the Rooker-
Feldman doctrine, which deprives federal courts of subject matter jurisdiction
to review a final state court decision arising out of a judicial proceeding unless
a federal statute specifically authorizes such review. See D.C. Court of Appeals
v. Feldman, 460 U.S. 462, 103 S. Ct. 1303 (1983); Rooker v. Fidelity Trust Co.,
263 U.S. 413, 44 S. Ct. 149 (1923); see also Johnson v. De Grandy, 512 U.S. 997,
1005-1006, 114 S. Ct. 2647 (1994) (Rooker-Feldman bars a losing party in state
court “from seeking what in substance would be appellate review of the state
judgment in a United States district court, based on the losing party’s claim that
the state judgment itself violates the loser’s federal rights”). The Supreme Court
recently reaffirmed that a federal court has no jurisdiction over “cases brought
by state-court losers complaining of injuries caused by state-court judgments
rendered before the district court proceedings commenced and inviting district
court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 284, 125 S. Ct. 1517, 1521-22 (2005). The
Rooker-Feldman doctrine would bar this court from hearing any challenge to the
foreclosure order because it is a challenge “in which the constitutional claims
presented . . . are inextricably intertwined with the state court’s grant or denial
of relief.” Hale v. Harney, 786 F.2d 688, 691 (5th Cir. 1986).
                                   III. CONCLUSION
       For the foregoing reasons, the district court’s judgment of dismissal is
AFFIRMED.

       2
        Pease contended below that his state court proceeding was not yet final. We, however,
find no evidence of this in the record. In fact, Pease admits in his brief to this court that his
state appeal was dismissed for want of prosecution.

                                               5


     TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                                    NO. 03-10-00611-CV

                                 In re Charles W. Bishop, II

                    ORIGINAL PROCEEDING FROM TRAVIS COUNTY

                            MEMORANDUM OPINION

              The petition for writ of mandamus is denied. See Tex. R. App. P. 52.8(a).

                                           __________________________________________

                                           Bob Pemberton, Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Filed: September 23, 2010


460 F.2d 164
UNITED STATES of America, Appellee,v.Louis Glenwood LANSDOWN, Appellant.
No. 72-1066.
United States Court of Appeals,Fourth Circuit.
Argued March 9, 1972.Decided May 4, 1972.

Joseph L. Duvall and Douglas E. Bywater, Fairfax, Va., for appellant.
Justin W. Williams, Asst. U. S. Atty.  (Brian P. Gettings, U. S. Atty., on brief), for appellee.
Before WINTER, BUTZNER and FIELD, Circuit Judges.
WINTER, Circuit Judge:

1
In defendant's first trial for armed bank robbery and conspiracy to commit armed bank robbery, a mistrial was declared over defendant's objection.  The district court took this action because it believed that the jury was hopelessly deadlocked.  Defendant then moved to dismiss the indictment on the ground that jeopardy had attached at his first trial and a retrial would violate his constitutional guarantee against double jeopardy.  When the district judge denied the motion and refused to stay the second trial pending an appeal of his order denying dismissal, we granted a stay of the second trial.  The appeal having been briefed and argued, we conclude that a second trial would violate defendant's rights and that the order denying the motion was appealable.  Accordingly, we reverse and remand the case for entry of an order dismissing the indictment.

2
* The government's case against the defendant at his initial trial, which began December 7, 1971, was based on the testimony of a codefendant and another unindicted alleged coconspirator.  The codefendant had pleaded guilty to the conspiracy charge and had been sentenced to a term of five years.  Upon the government's motion, the count charging armed bank robbery against him was dismissed.  The codefendant and the alleged coconspirator, both of whom were narcotic addicts with prior criminal records, testified that they went inside the bank to commit the robbery while the defendant waited in the alley behind the bank in the getaway car.  Their testimony was that after the robbery all went to the home of the defendant's mother.

3
The defendant testified in his own defense, denied that he had participated in the commission of the crime, and further testified that he had never even met his codefendant.  Defendant's credibility was not seriously impeached; he was shown to have pleaded guilty to only two minor bad check charges for which service of a term was not required.  His mother testified that prior to the trial she had never seen the codefendant or the alleged coconspirator.  Several witnesses testified as to defendant's reputation for truth and veracity.  After closing arguments and the instructions of the district judge, the case was submitted to the jury at 3:55 P.M. on the day of trial.

4
When the jury had not completed its deliberations by 5:30 P.M., it was sent home for the day. Deliberations were resumed at 10:00 A.M. on December 8 and continued until 5:20 P.M., at which time the foreman informed the judge that the jury was unable to agree upon a verdict.  The district judge then gave the so-called Allen charge to the jury, concluding with the statement that "[a]gain I tell you that you may be as leisurely in your deliberations as the occasion may require, and you shall take all the time which you may feel is necessary."  The district judge also told the jury that they could deliberate the next day if the jury so desired.

5
The jury then resumed its deliberations.  At 6:12 P.M. the court reconvened and shortly thereafter the jury was returned.  The foreman reported that a verdict had not been reached and requested that the jury be excused to return the next morning.  In discussion between the district judge and counsel before the jury was returned, the defendant and his counsel had agreed to excusing the jury for the night and had declined to move for a mistrial.  In the same discussion, the United States attorney who was prosecuting the case had requested that a mistrial be declared, and that the jury be discharged.

6
The jury resumed its deliberations at 10:00 A.M. on December 9, 1971.  Shortly before 1:00 P.M., after the court had concluded another matter, the court addressed counsel as follows, with these subsequent events:

7
THE COURT: The jury hasn't reached a verdict in this other case, obviously.

8
Are you representing the government?

9
MR. MARCUS: Yes, I do, your Honor.

10
THE COURT: I am going to dismiss it-mistrial.  I mean I have no choice.  I am not going to let them stay.

11
Knock on the door.  Let the jury come in.  Stand them along here.

12
THE MARSHAL: Gentlemen, cease your deliberations and step out here, please.

13
(At 12:59 p. m., the jury returned to the courtroom)

14
THE COURT: Mr. Foreman, not having heard from you since late last night, I am assuming that you have not reached a unanimous verdict; is that correct?

15
THE FOREMAN: That is correct, your Honor.

16
THE COURT: That is all I want to know.

17
The jury is going to be discharged.  It is obvious that you are hopelessly deadlocked.

18
THE FOREMAN: Your Honor, we are on the verge of a verdict.

19
THE COURT: Well, when you say "on the verge" I don't want to rush this jury and I don't want to browbeat anybody into anything.  You have had a reasonable length of time.  I am going to discharge the jury.

20
MR. DUVALL [counsel for defendant]: Your Honor,-

21
THE COURT: I don't know whether it is favorable or unfavorable.  I don't want to know.

22
MR. DUVALL: -could the court leave the jury in for the rest of the day?

23
THE COURT: I could, but I am not going to.  Two and a half days is an unreasonable hardship on the jurors, and it is just unreasonable, and I won't do it.

24
A JUROR: Could we have 10 minutes, your Honor?

25
THE COURT: No, because the jury is going to be discharged.

26
MR. DUVALL: Could they have 10 minutes, your Honor?

27
THE COURT: I don't know whether-I don't want to know.  I don't want to argue it.  I don't know whether they have a verdict one way or the other, and I am admonishing any of you, don't you tell counsel or talk to anybody about your deliberations, say anything about it.  I don't know.

28
It is obvious, very frankly, it is very obvious that you gentlemen don't agree, because the question was-I am discharging you and that is why I am saying it-it is a rather simple question.  Honest men can disagree and I am not holding you are anything else.  But you have had all of one day, half of another one and almost a third of the other, two days to decide one question, and there is only one question, and it is very simple, I mean, and so forth: This man was either a perpetrator of that bank robbery as the other two young men said or he wasn't.  It is a question of fact.

29
I don't want you to tell me and I don't want you to talk to these counsel because this case must be tried over again.  I am going to set it right after this one and another jury will hear, as far as I know, identically the same evidence.  I am sorry you couldn't reach a verdict.

30
I am proud of our jurors, and I don't want anybody to change his opinion.  But if honest men can't reach a conclusion in 20 hours on whether A was there or not I don't think 25 hours are going to help you.1

31
You are discharged, and I am sorry you couldn't do it, and I know you did your best.

32
Defendant contends that on the facts set forth above there was absent a "manifest necessity" to abort his trial and that as a consequence a second trial would violate his fifth amendment guarantee against double jeopardy.  He argues that the relief to which he was entitled was dismissal of the indictment.  Besides arguing that the mistrial was permissible and that retrial would not, therefore, constitute double jeopardy, the government counters with an attack upon our jurisdiction to hear and decide the appeal on the ground that the order appealed from was interlocutory and not a final order within the meaning of 28 U.S.C.A. Sec. 1291.  We will consider first the claim of double jeopardy.

II

33
A defendant has a "valued right to have his trial completed by a particular tribunal."  Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949).  Because of this right, a court may not declare a mistrial without the consent of the defendant unless there is a "manifest necessity for the act, or the ends of public justice would otherwise be defeated."  United States v. Perez, 22 U.S.  (9 Wheat) 579, 580, 6 L.Ed. 165 (1824).

34
Last term the Supreme Court reiterated its support for the Perez doctrine and noted that it stood as "a command to trial judges not to foreclose the defendant's option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings."  United States v. Jorn, 400 U.S. 470, at 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543.   Jorn represents the latest in a line of cases which has the practical effect of narrowing the discretion of the trial judge to declare a mistrial.  See, Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961); see also, United States v. Smith, 390 F.2d 420 (4 Cir. 1968); United States v. Chase, 372 F.2d 453 (4 Cir. 1967).

35
The general rule is that a defendant may be retried if in his first trial the jury is unable to reach an unanimous verdict.  See, generally, Annotation: Double Jeopardy-Mistrial, 6 L. Ed.2d 1510, 1517-1518.  This is so because a genuine inability to agree constitutes a "manifest necessity" to declare a mistrial and a defendant's right not to be subjected to jeopardy again must be subordinated "to the public's interest in fair trials designed to end in just judgments."  Wade v. Hunter, 336 U.S. at 689, 69 S.Ct. at 837.

36
An analysis of the cases supporting the general rule discloses that the decision to declare a mistrial in cases of apparent inability to agree is not based solely on the length of time the jury has deliberated.  While the length of deliberations is a relevant factor, the more important consideration is whether there is a possibility that the jury can reach a verdict within a reasonable time.  The most reliable source as to this information is the jury itself.  The conclusion that a jury is unable to reach a verdict must be supported by something in addition to the trial court's conclusion that the jury has deliberated long enough.2

37
We conclude that there was no "manifest necessity" in this case for declaring a mistrial when the district court did so.  The district court, without considering any other factors, simply concluded that approximately 11 hours of deliberation, in a case presenting a close question of credibility, was long enough.  The district judge did not seek the opinion of counsel or the defendant; after having told the jury that it could be "leisurely in its deliberations," he made no inquiry as to whether the jury was about to reach a verdict or thought that a verdict was possible.  Indeed, he rejected statements from the jury that it was on the verge of a verdict and wished to continue.3  The jury was dismissed at approximately 1:00 P.M. The jurors would have suffered little additional hardship if required to remain at least until the end of the day.4  Under these circumstances, we believe that the district court failed to protect adequately the defendant's right to have his case decided by a particular tribunal.

38
Our conclusion should not be construed to imply that there is a minimum period of time which a court must wait before declaring a mistrial because of a hung jury.  There are many cases, which we believe have been correctly decided, where the trial court was sustained after dismissing juries where they had deliberated less than the approximately 11 hours in this case.  E. g., United States v. Philips, 431 F.2d 949 (3 Cir. 1970); Grogan v. United States, 394 F.2d 287 (5 Cir. 1967); Marienfeld v. United States, 214 F.2d 632 (8 Cir. 1954); United States v. Medina, 323 F.Supp. 1277 (E.D.Pa. 1971).  However, in each of these cases the jury had specifically stated that they were hopelessly deadlocked, a crucial factor missing in the present case.

III

39
We think that the order denying the motion to dismiss the indictment is an appealable one, and defendant's notice of appeal gave us jurisdiction over the case.

40
A court of appeals has jurisdiction to hear appeals only from final orders, 28 U.S.C.A. Sec. 1291, and certain types of interlocutory appeals (of which this case is not one), 28 U.S.C.A. Sec. 1292; and the general rule is that an order denying a motion to dismiss an indictment is not a final order, but an unappealable interlocutory one.  See United States v. Curry, 442 F.2d 428 (4 Cir. 1971); United States v. Garber, 413 F. 2d 284 (2 Cir. 1969); Hoffa v. Gray, 323 F.2d 178 (6 Cir.), cert. denied, 375 U.S. 907, 84 S.Ct. 199, 11 L.Ed.2d 147 (1963).  The policy to limit appeals to those taken from final orders is particularly strong in criminal cases where "delays and disruptions attendant upon intermediate appeal are especially inimical to the effective and fair administration of the criminal law." DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 658, 7 L.Ed.2d 614 (1962); accord Cobbledick v. United States, 309 U.S. 323, 324-326, 60 S.Ct. 540, 84 L.Ed. 783 (1940).  But despite the important interests served by the final judgment rule, there has developed a line of cases which recognizes that, under certain exceptional and narrow circumstances, an appeal can be taken even though a final judgment has not been entered.

41
The exception to the final judgment rule was set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).  In Cohen, the Court affirmed the appealability of a district court order denying defendant's request that plaintiffs in a stockholder's derivative suit file an expense bond as required by state law. The Court stated that if the appeal were not allowed and decision of the question postponed until final judgment was entered "it will be too late effectively to review the present order and the rights conferred by the statute, if it is applicable, will have been lost, probably irreparably."  (Emphasis supplied.) 337 U. S. at 546, 69 S.Ct. at 1225.  The Court categorized the district court's order as follows:

42
This decision appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated . . . We hold this order appealable because it is a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it. 337 U.S. at 546-547, 69 S.Ct. at 1225.

43
In Cohen, the Court was interpreting the meaning of "final judgment" under 28 U.S.C.A. Sec. 1291 which gives the court of appeals jurisdiction "from all final decisions of the district courts of the United States . . ." and thus the rule announced is equally applicable to criminal as well as civil cases.5  For an order to be considered "final," and thus appealable under Cohen, it must possess three characteristics: (1) it must be separable from, and collateral to, the main cause of action; (2) the right involved must be too important to be denied review; and (3) the question presented must be such that, if review is postponed until final termination of the case, the claimed right will be irreparably lost.6

44
We believe that the district court's denial of the defendant's motion to dismiss based on a claim of double jeopardy is a final and appealable order under Cohen.  First, defendant's right is under the fifth amendment and it is separable from, and collateral to, the main cause of action which is whether he is innocent or guilty of the crimes charged.  Second, the right claimed is a constitutional one and, as such, it is too important to be denied review.  Finally, if review is not had now, the right claimed-to be free from being twice forced to stand trial for the same offense-will be irreparably lost.

45
The government argues that review of defendant's claim may be had at the end of the second trial and, if this court concludes that jeopardy did attach to the first trial, it can reverse defendant's conviction; and if the defendant is acquitted in the second trial, the issue is moot.  This argument is based upon a lack of appreciation of the true nature of the objectives of the guarantee against double jeopardy.  The double jeopardy "prohibition is not against being twice punished, but against being twice put in jeopardy."  United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L. Ed. 300 (1896).  Indeed, the Supreme Court has stated that the "underlying idea" of the double jeopardy clause is that the "State with all of its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."  Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); accord United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971).  Even if an appellate court reverses the conviction in a second trial on the grounds of double jeopardy, a defendant has still not been afforded the full protection of the fifth amendment since he has been subjected to the embarrassment, expense, anxiety and insecurity involved in the second trial.7  If an individual is to be provided the full protection of the double jeopardy clause, a final determination of whether jeopardy has attached to the previous trial must, where possible, be determined prior to any retrial.8

46
The government also contends that "[t]o hold . . . [a] denial of defendant's motion to dismiss . . . appealable merely because of a claim of double jeopardy . . . presents the alarming specter of any defendant being able to delay his retrial by saying the magic phrase of 'double jeopardy."'9  We do not believe, however, that an individual who requests the full protection of a constitutional right presents an alarming specter to our criminal justice system.  This type of argument-that our criminal justice system would be impaired if defendants were permitted the full protection of their constitutional rights-has been raised before and rejected.  See United States v. Wade, 388 U.S. 218, 237-238, 87 S.Ct. 1926, 18 L. Ed.2d 1149 (1967); Miranda v. Arizona, 384 U.S. 436, 479-481, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Escobedo v. Illinois, 378 U.S. 478, 488-489, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Mapp v. Ohio, 367 U.S. 643, 659-660, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).  "[T]he Constitution has prescribed the rights of the individual when confronted with the power of government . . . If the individual desires to exercise his privilege, he has the right to do so."  Miranda v. Arizona, supra, 384 U.S. at 478-480, 86 S.Ct. at 1630.

47
Any delay in the administration of criminal justice and any increase in the number of appeals stemming from our decision will be minimal.  Our decision will apply only to that very small number of criminal cases in which a mistrial is declared against the wishes of the defendant.10  Furthermore, if the defendant is successful in his appeal, both he and the government will be saved the time and expense of a second trial.  There is no greater waste for all concerned-defendant, government, court, and jury-than the reversal of a conviction on the grounds that it was barred in the first place by the double jeopardy clause.  Finally, it should be noted that the double jeopardy clause is also concerned with "finality." "[T]he Fifth Amendment's prohibition against placing a defendant 'twice in jeopardy' represents a constitutional policy of finality for the defendant's benefit in federal criminal proceedings."  United States v. Jorn, supra, 400 U.S. at 479, 91 S.Ct. at 554.

48
We conclude, therefore, that the denial of defendant's motion to dismiss was a final appealable order under Cohen.  We have jurisdiction to decide and, therefore, direct that defendant's motion to dismiss his indictment be granted.

49
Reversed and remanded.

1
 In fact, the jury had deliberated slightly in excess of 11 hours

2
 The case law does not indicate how long a jury must be permitted to deliberate before a court is justified in declaring a mistrial.  The length of deliberations vary widely.  Compare Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892) (mistrial declared after 40 hours of deliberation), with United States v. Jim Lee, 123 F. 741 (N.D.Cal. 1903) (mistrial declared after 1 hour and 35 minutes of deliberation).  This range suggests the impossibility of establishing a rule based solely on the length of deliberations.  Of course, there may be an exceptional case where the issues are simple and the jury fails to return a verdict despite repeated assurances that it can.  Under these circumstances, a trial judge may be justified in taking the case from the jury, but that is not our case and, therefore, we need not decide that issue

3
 The government contends that had the district court given the jury an additional 10 minutes as requested by one juror, it would have committed error.  This is correct.  A jury cannot operate under a rigid time deadline.  See Goff v. United States, 446 F.2d 623, 626 (10 Cir. 1971); Burroughs v. United States, 365 F.2d 431 (10 Cir. 1966).  However, the importance of the juror's request for 10 more minutes, and the foreman's declaration that the jury was on the verge of a verdict, is that they indicate that the jury was not hopelessly deadlocked.  Our disagreement with the district court is not over the fact that it refused to grant a specific amount of time for further deliberation, but that it declared a mistrial where the indications were that the jury was capable of reaching a verdict

4
 The jury had stated the night before that it wished to return the following day to deliberate.  It expressed nothing further, before being discharged, to indicate that whether it went home at 1:00 P. M. or 5:00 P. M. was of any significance to it

5
 See Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951) (denial of habeas corpus to fix bail); Higgins v. United States, 205 F.2d 650 (9 Cir. 1953) (order determining that an accused is incapable of standing trial as a result of present insanity).  Bail orders are now reviewable under 18 U.S.C.A. Sec. 3147, but the reasoning in Stack would appear to be still valid

6
 See 9 Moore's Federal Practice p 110.10 (2nd Ed. 1970)

7
 The government relies on Parr v. United States, 351 U.S. 513, 76 S.Ct. 912, 100 L.Ed. 1377 (1956).  In Parr, the Court held that a defendant must wait until the termination of his trial under a second indictment before he could have review of a dismissal of his original indictment.  We believe that Parr is distinguishable.  First, in Parr there was no claim that jeopardy had attached as a result of the first indictment and hence the defendant's claim did not involve a constitutional right as in this case.  Second, the Court found that the defendant would not be denied effective review of his claim.  But see Parr v. United States, supra, 351 U.S. at 521, 76 S.Ct. 912 (Warren, C. J., dissenting).  Here, if defendant is denied review at this stage, the right claimed will be irreparably lost.  Finally, the Court noted that bearing the cost and discomfiture of a criminal trial is one of the painful obligations of citizenship.  In Parr, the defendant sought review before he had undergone the burden of a single trial.  In the present case the government would have the defendant bear this burden twice before review.  We think this is an unreasonable burden, particularly when this court concludes that the retrial is barred

8
 Our holding is limited to the narrow facts and circumstances of this case.  Where the charges in the first and second trial differ and a double jeopardy argument rests on a claim that certain facts required for a conviction in the second trial were previously determined in an earlier trial, review must wait until the completion of the second trial.  Nor does our decision apply to those cases where the mistrial is declared at the request of the defendant since in those cases the defendant has waived any claim of double jeopardy.  See United States v. Tateo, 377 U.S. 463, 467, 84 S.Ct. 1587, 12 L.Ed. 2d 448 (1964)

9
 Brief for Appellee, at 6

10
 See note 7 supra.  While there are no statistics on the number of mistrials in criminal cases, we are satisfied that the number is quite small in relation to the total number of criminal cases.  And our decision today involves only a small percentage of those since we deal only with mistrials instigated by the court and opposed by the defendant


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377 B.R. 604 (2007)
In re TIMBER LODGE STEAKHOUSE, INC., Debtor.
Bankruptcy No. 06-41228.
United States Bankruptcy Court, D. Minnesota.
October 29, 2007.
John M. Koneck, Ryan Murphy, Fredrikson & Byron PA, Minneapolis, MN, for AEI Fund Management Inc.
Thomas Lallier, Foley & Mansfield P.L.L.P., Minneapolis, MN, for Crown Bank.
*605 Cass Weil, Moss & Barnett, Minneapolis, MN, for J & B Group Inc.
Ralph Mitchell, Lapp Libra Thomson Stoebner & Pusch, Mpls, MN, for Lily Ko, Reinhart Foodservice LLC and Shen Ko Investment Group LLC.
Thomas J. Wratkowski, Minneapolis, MN, for Kraus-Anderson Inc.
Thomas Flynn, Larkin Hoffman Daly & Lindgren, Bloomington, MN, for Larkin Hoffman Daly & Lindgren and Timber Lodge Steakhouse, Inc.
Jane Welch, Morrison Fenske & Sund, P.A., Minnetonka, MN, for Medica.
Larry B. Rieke, Leonard, Street & Deinard P.A., Minneapolis, MN, for Minnesota Timberwolves Basketball Limited.
Christopher O'Brien, Office of Counsel, Albany, NY, for New York State Department of Taxation.
Joseph W. Lawyer, Messerli & Kramer PA, Minneapolis, MN, for Realty Development-West.
Alan E. Brown, Kenneth Corey-Edstrom, Larkin Hoffman Daly Lindgren Ltd., Bloomington, MN, for Timber Lodge Steakhouse, Inc.
Michael E. Ridgway, Sarah J. Wencil, U.S. Trustee Office, Minneapolis, MN, for U.S. Trustee.

Order Partially Disallowing Claim No. 78-1
DENNIS D. O'BRIEN, Bankruptcy Judge.
This matter was heard on September 13, 2007, on objection by Debtor Timber Lodge Steakhouse, Inc., to claim no. 78-1 filed by Shen Ko Investment Group, LLC, in the amount of $278,110.72, resulting from the Debtor's rejection of a lease of Wisconsin real estate where the Debtor had operated one of its restaurants. Thomas J. Flynn appeared for the Debtor, and Ralph V. Mitchell appeared on behalf of Shen Ko. Based on the pleadings, arguments and relevant documents filed in connection with the proceeding, the Court being fully advised in the matter, now makes this ORDER pursuant to the Federal and Local Rules of Bankruptcy Procedure.

I.
Shen Ko Investment Group, LLC's claim in the amount of $278,110.72 includes damages calculated under 11 U.S.C. § 502(b)(6) for future damages under a rejected lease attributed by Shen Ko to a period after Shen Ko sold the leasehold property to a third party following the rejection by the Debtor. The Court concludes that as a matter of law Shen Ko mitigated its damages by the sale and is not entitled to any damages under 11 U.S.C. § 502(b)(6) for the period following consummation of sale of the property post rejection.

II.
Shen Ko Investment Group, LLC was the landlord under a nonresidential lease for a Timber Lodge Restaurant location in Madison, Wisconsin. On August 8, 2006, this Court entered an order approving the rejection of the Madison lease, effective as of July 13, 2006. Following the rejection of the Madison lease, Shen Ko sold the entire property to a third-party purchaser in August 2006. Shen Ko, in the purchase and sale documents, reserved its claim for damages against the Debtor. The claim was timely filed and includes damages calculated under 11 U.S.C. § 502(b)(6) for a period post sale. Shen Ko argues that Minnesota law applies by terms of the lease, that under Minnesota law Shen Ko was not required to mitigate its damages calculated under *606 § 502(b)(6), and that the sale should not result in the reduction of its claim for post sale damages. The Court disagrees.
11 U.S.C. § 502(b)(6) provides:
(b) Except as provided in subsections (e)(2), (f), (g), (h) and (I) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount, except to the extent that
(6) if such claim is the claim of a lessor for damages resulting from the termination of a lease of real property, such claim exceeds
(A) the rent reserved by such lease, without acceleration, for the greater of one year, or 15 percent, not to exceed three years, of the remaining term of such lease, following the earlier of
(I) the date of the filing of the petition; and
(ii) the date on which such lessor repossessed, or the lessee surrendered, the leased property; plus
(B) any unpaid rent due under such lease, without acceleration, on the earlier of such dates;
Shen Ko begins by arguing:
Williston acknowledges that a landlord has no duty to mitigate damages upon breach of a lease under Minnesota law:
Under the traditional view of the common law, still followed in some jurisdictions, the landlord is under no duty to attempt to relet the premises following the tenant's abandonment of them before the expiration of the lease; the lessor may remain inactive and sue the tenant for the rent when it matures. Williston on Contracts § 66:87, citing Markoe v. Naiditch and Sons, 303 Minn. 6, 226 N.W.2d 289 (1975); Control Data Corp. v. Metro Office Parks Co., 296 Minn. 302, 208 N.W.2d 738 (1973). Gruman v. Investors Diversified Services. Inc., 247 Minn. 502, 78 N.W.2d 377 (1956).
Supplemental Memorandum in Response to Debtor's Objection to Claim of Shen Ko Investment Group, LLC., August 20, 2007, pp. 2, 3.
While that might be true, once the lease is terminated a duty to mitigate damages arises under Minnesota law.[1]
Under Minnesota case law, even when a lease has been terminated the landlord is entitled to an amount equal to the "damages resulting from the breach with the attendant obligation upon the [landlord] to use reasonable efforts to mitigate such damage subsequent to the breach." Gruman v. Investors Diversified Services, Inc., 247 Minn. 502, 508, 78 N.W.2d 377, 381 (1956) (citing Newberg v. Conley, 190 Minn. 459, 252 N.W. 221 (1934)).
Provident Mut. Life. Ins. Co. v. Tachtronic Instruments, Inc., 394 N.W.2d 161, 165 (Minn.Ct.App.1986).
*607 But, duty is not an issue here. The undisputed fact is that Shen Ko sold the property to a third party purchaser who now occupies the property in the operation of a business. Consummation of the sale terminated the lease and was a mitigation of damages.
A lease may be terminated by express agreement or by implied agreement (sometimes called termination by operation of law), termination by estoppel, or acceptance of surrender. See Trimble v. Lake Superior & Puget Sound Co., 99 Minn. 11, 108 N.W. 867 (1906). A surrender by operation of law arises from a condition of fact that is voluntarily assumed and that is incompatible with the existence of a landlord-tenant relationship. Hildebrandt v. Newell, 199 Minn. 319, 323, 272 N.W. 257, 259 (1937). When, as here, the lease expressly permits re-entry by the landlord, there must be unequivocal proof that the landlord intended to forgive the tenant's further obligations under the lease and accepted the tenant's surrender of the premises. See Sjoberg v. Hartz, 199 Minn. 81, 84, 271 N.W. 329, 331 (1937)
Provident Mut. Life. Ins. Co. v. Tachtronic Instruments, Inc., 394 N.W.2d 161, 164 (Minn.Ct.App.1986).
Sale of the leased property to a third party constitutes the "unequivocal proof that the landlord intended to forgive the tenant's further obligations under the lease and accepted the tenant's surrender of the premises." See: Bowman v. Plumb, 220 Minn. 547, 550, 20 N.W.2d 493 (1945) ("lease may be terminated by operation of law where the owner of the leased premises has been a party to some act the validity of which he is estopped from disputing. It may be thus terminated when the landlord voluntarily assumes a position incompatible with the existence of the relationship of landlord and tenant as between said landlord and the original lessees. Thus, if a landlord accepts a third party as a tenant in place of a prior lessee, in effect this constitutes an acceptance of the surrender of the leased property and a consequent termination of the prior lease by operation of law.")
And, as stated in Williston on Contracts:[2]
If a landlord accepts the surrender of a lease . . . the landlord cannot recover that rent that would otherwise accrue thereafter, and the same is true if the landlord sells the premises.
Williston on Contracts, § 66:86.

III
Based on the forgoing discussion, the Court concludes that Shen Ko Investment Group, LLC has no right to damages under 11 U.S.C. § 502(b)(6) that would represent future damages under the rejected lease after consummation of the sale of the leased property by Shen Ko following the rejection. Accordingly, IT IS HEREBY ORDERED:
1. Claim no. 78-1, filed by Shen Ko Investment Group, LLC, in the amount of $278,110.72, resulting from the Debtor's rejection of a lease of Wisconsin real estate where the Debtor had operated one of its restaurants, is DISALLOWED to the extent that it includes future damages calculated under 11 U.S.C. § 502(b)(6) for any period following consummation of the sale of the leased property, and is ALLOWED to the extent the claim includes damages *608 for the period prior to consummation of the sale.
NOTES
[1]  Even if there was no duty to mitigate damages under Minnesota law, there is the duty under 11 U.S.C. § 502(b)(6). See: In re Bob's Sea Ray Boats, Inc., 143 B.R. 229, 231 (Bankr.D.N.D.1992) ("As with any claim for damages arising out of the breach of a lease, a claim for damages under section 502(b)(6) is subject to mitigation including an obligation on the part of the landlord to attempt the reletting of the premises."); In re Highland Superstores, Inc., 154 F.3d 573, 577 ("Because a lessor has a duty to mitigate its damages, see In re Bob's Sea Ray Boats, Inc., 143 B.R. 229, 231 (Bankr.D.N.D.1992), if the lessor has relet the premises at a higher rent, it generally will have no section 502(b)(6) claim.")
[2]  See also: Ozarks Unlimited Resources Cooperative, Inc. v. Edward C. Daniels, Jr., et al., (333 Ark. 214, 969 S.W.2d 169) (1998); McGuire v. City of Jersey City, 125 N.J. 310, 593 A.2d 309 (1991).