       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                      CALVIN SCOTT MCDONALD,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D17-3323

                           [February 13, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    Glenn     D.   Kelley,    Judge;   L.T.    Case    No.
502015CF005205AXX.

  Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant
Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel,
West Palm Beach, for appellant.

  Ashley B. Moody, Attorney General, Tallahassee, and Joseph D.
Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, J.

   Calvin McDonald appeals his conviction and sentence for one count of
robbery with a deadly weapon and one count of attempted robbery with a
deadly weapon. Because Appellant stands convicted of crimes for which
he was not charged, we reverse.

    Appellant was accused of robbing one individual and attempting to rob
another individual in a store parking lot while brandishing the barrel of a
firearm. Shortly after fleeing from the scene, Appellant was apprehended
by police and identified as the perpetrator by one of the victims.
The firearm allegedly used during the commission of the crimes was never
retrieved. Based on the information provided by the victims, the State
charged Appellant with one count of robbery with a firearm and one count
of attempted robbery with a firearm contrary to section 775.087(2)(a)1.,
Florida Statutes. The State did not charge Appellant with robbery or
attempted robbery with a deadly weapon.
    The matter ultimately proceeded to a jury trial. At trial, one of
Appellant’s theories of defense was that he did not possess or use a real
firearm during the alleged robbery and attempted robbery and that what
the victims observed was a BB gun. To dispel this defense, the State
presented the testimony of both victims which established the following.

    On the night of the incident, the victims were approached by Appellant
in the parking lot of a Walmart. After engaging in conversation, Appellant
leaned against the victims’ vehicle, placed his hand underneath his shirt,
mumbled “do you see what’s in my hand,” and demanded cash. When
both victims looked down towards Appellant’s hand, they saw the barrel
of a black firearm. The remainder of the firearm was hidden underneath
Appellant’s shirt. Both victims testified that the object Appellant was
holding appeared to be a real firearm. Specifically, one of the victims
testified that she was somewhat familiar with firearms and that the object
in Appellant’s hand was not a BB gun as it did not have a red tip. The
other victim testified that he was very familiar with firearms and that he
automatically recognized the object in Appellant’s hand as being a black
automatic or semi-automatic hand gun.

    During the charge conference, the parties agreed that the jury
instructions and verdict form would include the following interrogatories
for sentencing enhancement purposes 1:

      If you find the defendant guilty of the crime of robbery [or
      attempted robbery], you must further determine beyond a
      reasonable doubt if “in the course of committing the robbery
      [or attempted robbery]” the defendant:

        1.   carried some kind of weapon;
        2.   carried a deadly weapon;
        3.   carried a firearm; and/or
        4.   actually possessed a firearm.

    The jury ultimately found Appellant guilty of robbery and attempted
robbery, however selected “no” to the questions of whether Appellant
carried or actually possessed a firearm in the course of committing the
offenses and “yes” to the question of whether Appellant carried a deadly
weapon in the course of committing the offenses. Consistent with the
jury’s verdict, the court entered a judgment of guilt adjudicating Appellant
guilty of one count of robbery with a deadly weapon, a first degree felony

1  The State initially sought imposition of an enhanced sentence under section
775.087, Florida’s 10-20-Life statute.

                                      2
punishable by life, and one count of attempted robbery with a deadly
weapon, a second degree felony. Appellant did not object to, or otherwise
challenge, the judgment of guilt.

   At the ensuing sentencing hearing, the trial court found that Appellant
qualified as a prison releasee reoffender (“PRR”). As required under section
775.082(9)(a)3., Florida Statutes, the court sentenced Appellant to life in
prison on the robbery with a deadly weapon conviction and fifteen years
in prison on the attempted robbery with a deadly weapon conviction to run
concurrent with the life sentence.

    On appeal, Appellant argues that his convictions for the uncharged
offenses of robbery with a deadly weapon and attempted robbery with a
deadly weapon constitute fundamental error and must be reduced to
robbery and attempted robbery with a weapon. We agree.

   It is well established that “[d]ue process prohibits an individual from
being convicted of an uncharged crime” and that “[v]iolation of this
prohibition constitutes fundamental error.” Morgan v. State, 146 So. 3d
508, 512 (Fla. 5th DCA 2014); see also Falstreau v. State, 326 So. 2d 194,
195 (Fla. 4th DCA 1976) (recognizing that a conviction for an uncharged
crime constitutes fundamental error unless the conviction is for a crime
that is “(1) a lesser degree of the crime charged, (2) an attempt to commit
the crime charged, (3) necessarily included in the crime charged, or (4)
included within the allegations of the accusatory pleading and shown by
the proofs”).

    The holding in Davis v. State, 235 So. 3d 320 (Fla. 2018) is instructive.
The defendant in that case was charged in two separate cases with one
count of robbery with a firearm. Id. at 321. As in the instant case, the
State in Davis did not charge the defendant with robbery with a deadly
weapon. Id. In both cases, evidence was presented that the object used
to commit the crimes was either a real firearm or a BB gun replica of a
firearm. Id. The juries in both cases found that the defendant did not
possess a firearm as alleged in the information and instead found him
guilty of robbery with a deadly weapon, an offense which the juries were
instructed was a lesser-included offense of the crime charged. Id.

   Citing to Jaimes v. State, 51 So. 3d 445, 448 (Fla. 2010) for the
proposition that “[i]t is a fundamental principle of due process that a
defendant may not be convicted of a crime that has not been charged by
the state,” the court held that the defendant’s convictions for the
uncharged offense of robbery with a deadly weapon could not stand. Id.
In so holding, the court observed that robbery with a deadly weapon is not

                                     3
a lesser-included offense of robbery with a firearm; rather, robbery with a
weapon is the next immediate lesser-included offense of robbery with a
firearm. Id. The court nonetheless concluded that because the evidence
in both trials established that the object the defendant used during the
robberies was, if not a firearm, a replica of a firearm which the juries
clearly found to be a weapon, the evidence was sufficient to sustain
convictions for robbery with a weapon. Id. Accordingly, the proper remedy
was to reduce the defendant’s convictions from robbery with a deadly
weapon to robbery with a weapon. Id. at 322.

   In the present case, as in Davis, it is undisputed that the State did not
charge Appellant with robbery or attempted robbery with a deadly weapon
and that the offenses of robbery or attempted robbery with a deadly
weapon are not lesser-included offenses of the charged crimes.
Accordingly, Appellant’s convictions for robbery and attempted robbery
with a deadly weapon cannot stand. Id. at 321. Because the evidence
presented at trial established that, if not a firearm, the object Appellant
used during the robbery and attempted robbery was a BB gun which the
jury clearly found to be a weapon, the evidence is sufficient to sustain
convictions for robbery and attempted robbery with a weapon. Id.
Consistent with Davis, we reverse and remand for entry of a corrected
judgment adjudicating Appellant guilty of robbery and attempted robbery
with a weapon. Id. at 322.

    The State acknowledges the holding in Davis but nonetheless
maintains that the instant case is distinguishable because the verdict form
did not list robbery or attempted robbery with a deadly weapon as lesser-
included offenses but rather as sentencing enhancements. This argument
has no merit. Regardless of the reason why the uncharged crimes were
listed on the verdict form, the fact remains that Appellant stands convicted
of crimes for which he was not charged and which are not lesser-included
offenses of the charged crimes.

    Appellant also argues that he was unconstitutionally sentenced as a
PRR because the trial court judge, rather than the jury, made the predicate
findings for PRR status. We reject this argument without further
comment. See Chavis v. State, 247 So. 3d 9, 10 (Fla. 4th DCA 2018);
Chapa v. State, 159 So. 3d 361, 362 (Fla. 4th DCA 2015). Appellant will,
however, need to be resentenced on the robbery with a weapon conviction.
This is because section 775.082 only provides for a PRR life sentence for a
felony punishable by life. § 775.082(9)(a)3.a., Fla. Stat. (2015). For any
other felony in the first degree, the statute provides that the defendant
must be sentenced to a term of imprisonment of thirty years.
§ 775.082(9)(a)3.b., Fla. Stat. Robbery with a weapon is a felony of the

                                     4
first degree not punishable by life. § 812.13(2)(b), Fla. Stat. (2015).
Accordingly, Appellant must be resentenced to a legal sentence in
accordance with section 775.082(9)(a)3.b.

  Reversed and remanded for a corrected judgment and resentencing.

GROSS and MAY, JJ., concur.

                          *        *        *

  Not final until disposition of timely filed motion for rehearing.

                                  5


799 F.Supp.2d 1297 (2011)
UNITED STATES of America,
v.
Teresa June EDMONDSON.
CR. No. 3:02cr13-WHA-CSC.
United States District Court, M.D. Alabama, Eastern Division.
August 1, 2011.
*1298 Jared Morris, Louis V. Franklin, Sr., Terry F. Moorer, Tommie Brown Hardwick, U.S. Attorney's Office, Montgomery, AL, for Plaintiff.

MEMORANDUM OPINION AND ORDER
W. HAROLD ALBRITTON, Senior District Judge.
This case is before the court on a Motion for Downward Departure (Doc. #255) filed by Defendant Teresa June Edmondson ("Edmondson").
Edmondson was convicted on July 27, 2002, and sentenced on November 22, 2002. After she appealed, the Eleventh Circuit affirmed her conviction and sentence on December 4, 2003. On March 9, 2005, Edmondson filed an 18 U.S.C. § 2255 motion to Vacate, Set Aside, or Correct Sentence. The court denied Edmondson's § 2255 motion on April 23, 2007.
Now, Edmondson argues that she is entitled to a retroactive downward departure, because she has allegedly been rehabilitated since beginning her term of imprisonment. The court concludes that Edmondson is not entitled to challenge her sentence on that basis, given this case's procedural posture.[1]
In 2007, the Southern District of Alabama dealt with a similar case, and denied relief. United States v. Lloyd, 484 F.Supp.2d 1232 (S.D.Ala.2007) (Steele, J.). In that case, Lloyd was sentenced, and the Eleventh Circuit affirmed his sentence. Id. at 1235-36 Approximately six months later, Lloyd filed a 28 U.S.C. § 2255 motion, arguing, in part, that his sentence should be "`corrected' or `reconsidered' based on [his] post-conviction rehabilitation." Id. at 1236. The court held that post-sentencing rehabilitation is not a sufficient ground for § 2255 relief, and additionally, it would not entitle Lloyd to relief even if the court liberally construed "his pro se filing ... as a motion for sentence reduction under 18 U.S.C. § 3582(c)." Id. at 1240-41.
With respect to his § 2255 claim, the court explained that
Lloyd does not contend that his sentence was infected with error of either constitutional or nonconstitutional dimensions but instead asks that he be resentenced so that the Court may take into account rehabilitative endeavors that postdate his original sentencing. This request falls outside the permissible parameters of § 2255 relief and therefore is not cognizable, as a matter of law.
Id. at 1241. The court cited numerous authorities in support, and wrote that it was "unaware of a single authority to the contrary." Id. at 1241 n. 12 (citing cases).
The court similarly denied relief under § 3582(c), because § 3582(c) authorizes relief only based on the limited circumstances enumerated in that statute,[2] and *1299 "[p]ost-sentencing rehabilitation is not among the enumerated grounds in that statute, and therefore cannot justify a reduction in sentence." Id. at 1241; see also id. at 1241 n. 13 (citing cases).
This court agrees with the reasoning of the Lloyd court. Turning to the facts of this case, it is unclear whether Edmondson seeks relief under § 3582 or § 2255. But, for the same reasons given by the Lloyd court, Edmondson's claim is not cognizable under either statute. Moreover, as the Government points out, Edmondson cannot obtain relief under § 2255 with this court at this time, because she previously filed a § 2255 motion, and failed to obtain certification to file another such motion. See 28 U.S.C. § 2255(h).
Finally, although Edmondson cites numerous cases, the Government correctly points out that all of those cases dealt with consideration of rehabilitation at the time of sentencing, or resentencing after an appellate court's reversal and remand of a previously-imposed sentence. For example, Edmondson cited Pepper v. United States, in which the Supreme Court held that "when a defendant's sentence has been set aside on appeal and his case remanded for resentencing, a district court may consider evidence of a defendant's rehabilitation since his prior sentencing and that such evidence may, in appropriate cases, support a downward variance from the advisory Guidelines range." Pepper v. United States, ___ U.S. ___, 131 S.Ct. 1229, 1241, 179 L.Ed.2d 196 (2011) (emphasis added).
In this case, because the sentence has already been imposed, and is not before this court for resentencing on remand, Edmondson's cited cases, including Pepper, do not apply. In other words, while rehabilitation may be a ground the court can consider if it is in the midst of sentencing or resentencing, rehabilitation is not a justification for the court to resentence the defendant in the first place. See, e.g. United States v. Ramos, No. 6:01-cr-90-Orl-19KRS, 2011 WL 2413463, at *2 (M.D.Fla. June 14, 2011) (refusing to consider a defendant's motion for a post-sentencing downward departure due to defendant's rehabilitative efforts, when the sentence had "not been set aside on appeal and remanded for resentencing"); Harris *1300 v. United States, Criminal No. 03-72, 2009 WL 303701, at *3 (W.D.Pa. Feb. 9, 2009) ("At resentencing, a court may consider a defendant's extraordinary post-sentencing rehabilitation efforts as a basis for a downward departure. The extraordinary rehabilitation, however, is not a basis for resentencing.") (citation omitted); see also Lloyd, 484 F.Supp.2d at 1240 ("A § 2255 petitioner cannot obtain a new sentencing hearing each time his history and characteristics change in some way; otherwise, federal courts would be bombarded by resentencings, forever ratcheting sentences up or down on an almost daily basis depending on whatever changes there might have been in any of the § 3553(a) factors in the interim.").
For the foregoing reasons, the Motion for Downward Departure is OVERRULED.
NOTES
[1]  Edmondson states that her Motion is based on 28 U.S.C. § 452 and Federal Rules of Criminal Procedure 2, 47, and 56(a). These provisions refer to either the purposes of the Federal Rules of Criminal Procedure or the rules for filing motions. They do not authorize this court to grant the particular relief that Edmondson seeks in this case.
[2]  18 U.S.C. § 3582(c) states that a court "may not modify a term of imprisonment once it has been imposed except that"

(1) in any case
(A) the court, upon motion of the Director of the Bureau of Prisons, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that
(I) extraordinary and compelling reasons warrant such a reduction; or
(II) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);
and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission; and
(B) the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure; and
(2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
None of Federal Rule of Criminal Procedure 35's grounds for reduction in sentence apply to this case.


977 F.2d 598
Morandi, S.A.v.U.S.
NO. 91-5204
United States Court of Appeals,Eleventh Circuit.
Oct 08, 1992
Appeal From:  S.D.Fla., 747 F.Supp. 667

1
REVERSED IN PART, VACATED IN PART.


260 F.3d 1209 (10th Cir. 2001)
UNITED STATES OF AMERICA, Plaintiff - Appellee,v.EFRAIN CARO, Defendant - Appellant.
No. 99-4229
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
August 9, 2001

Richard A. Hostetler, Law Office of Marks and Hostetler, Denver, Colorado, for Defendant-Appellant.
Paul M. Warner, United States Attorney, Barbara Bearnson and Wayne T. Dance, Assistant United States Attorneys, Salt Lake City, Utah, for Plaintiff-Appellee.
Before SEYMOUR, HENRY, and LUCERO, Circuit Judges.

ORDER ON REHEARING

1
On consideration of the petition for rehearing filed by Plaintiff-Appellee the United States of America, the court finds and concludes as follows:

2
The government argues that our opinion erred in concluding that New York v. Class, 475 U.S. 106 (1986), and United States v. Miller, 84 F.3d 1244 (10th Cir. 1996), which relied upon Class, control this case. It contends that the relevant holdings in Class and Miller were dicta, and that those cases were factually inapposite. However, because we accord great weight to the dicta of the Supreme Court, it was not error to rely upon dictum in Class in considering the applicability of Class and Miller to the facts before us. See Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996) ("[T]his court considers itself bound by Supreme Court dicta almost as firmly as by the Court's outright holdings . . . ."). Our opinion reasonably construed those cases.

3
The government also argues that our holding impermissibly considered Trooper Avery's "subjective" intent to examine a doorjamb VIN, because Trooper Avery's actions were objectively justifiable under Pennsylvania v. Mimms, 434 U.S. 106 (1977), Texas v. Brown, 460 U.S. 730 (1982), and Whren v. United States, 517 U.S. 806 (1996). According to the government, Trooper Avery had the authority under Mimms to order Mr. Caro out of his car. When Mr. Caro exited his car, its doorjamb was exposed to view, meaning Trooper Avery could legally view it under Brown. As a consequence, the government argues that under Whren, it is irrelevant that Trooper Avery intended to look for a doorjamb VIN when he asked Mr. Caro to exit his vehicle, as the order to exit was objectively permissible under Mimms.

4
This theory, which was not raised in the government's brief on appeal, is a more serious objection to our holding. In considering whether to grant rehearing on this basis, we have carefully reviewed the evidence presented in the case. Upon revisiting the videotape of the traffic stop, we discovered an obscure but highly relevant error in the sequence of facts that was agreed upon in the appellate briefs of both parties, repeated in the "Background" section of the panel opinion, and reasserted in the petition for rehearing.

5
According to all these statements of facts, Mr. Caro exited his car in response to Trooper Avery's request to view the doorjamb VIN, after Trooper Avery had already inspected the dashboard VIN. But the videotape of the traffic stop clearly shows that this was not the case. In the relevant segment of the tape, Trooper Avery walks to the driver's window and speaks to Mr. Caro, following which Mr. Caro exits the car. As he exits, Mr. Caro leaves the door open, but it swings shut on its own. Trooper Avery then inspects the VIN on the dashboard, comparing it to the registration papers in his hand. While he does this, Mr. Caro stands next to the car, immediately behind the driver's door. After Trooper Avery finishes inspecting the dashboard VIN, he takes several steps towards Mr. Caro and speaks to him briefly. Trooper Avery then opens the car door and bends over to examine the doorjamb. After looking around at the doorjamb, the interior of the vehicle, and the edge of the door, Trooper Avery closes the door and again speaks to Mr. Caro. Mr. Caro then opens the door and releases the trunk of the car, presumably in response to a request by Trooper Avery to search it.

6
If Mr. Caro was already standing outside a closed car door at the time Trooper Avery asked to inspect the doorjamb for a VIN, and if Trooper Avery opened that car door himself in order to effect that inspection, Mimms cannot have "provide[d] the legal justification for the officer's action." Whren, 517 U.S. at 813 (quoting Scott v. United States, 436 U.S. 128, 138 (1978)). This case therefore continues to be controlled by Class and Miller, and there is no need to reach the issue of any possible interplay between Mimms and Class that might pertain to the examination of a vehicle doorjamb in search of a VIN.

7
Accordingly, this panel orders that the petition for rehearing is DENIED.


141 F.3d 1175
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Wesley FAUVER, Plaintiff-Appellant,v.JOSEPHINE COUNTY;  Daniel B. Calvert, Josephine CountySheriff, Defendants-Appellees.
No. 97-35172.D.C. No. CV-95-03055-JPC.
United States Court of Appeals,Ninth Circuit.
.Argued and Submitted March 6, 1998.Decided March 17, 1998.

Appeal from the United States District Court for the District of Oregon Michael R. Hogan, District Judge, Presiding.
Before FERNANDEZ, RYMER and TASHIMA, Circuit Judges.

1
MEMORANDUM*

2
Wesley Fauver was terminated from his job as a deputy sheriff because of his improper sexual conduct.  He asserts that he was not given a constitutionally sufficient pre-termination hearing.  The district court granted summary judgment.  He appeals.  We affirm.

3
There is no dispute that Fauver was entitled to a pre-termination hearing that complied with due process under the United States Constitution.  See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985).  That is, he had a right to notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story.  See id.   Of course, he was also entitled to have some indication that his job was in jeopardy.  See Matthews v. Harney County, Oregon, School Dist. No. 4, 819 F.2d 889, 892 (9th Cir.1987).

4
On this record, we agree with the district court that Fauver had ample notice and that his lengthy meeting with his employer gave him a full opportunity to say whatever he wanted to say on his own behalf.  The fact that the employer had not already formulated a particular form of discipline is of no moment.  Indeed, had the employer already made up its mind, we would be called upon to fault that.  See Brady v. Gebbie, 859 F.2d 1543, 1554-55 (9th Cir.1988).  Fauver knew what he was charged with, knew what the victim asserted, and knew that the charges could lead to termination of his employment.  His federal due process rights were not violated.

5
Because Oregon construes the demands of its constitutional provisions in the employment termination area to be congruent with federal due process demands, his rights under Article I, Section 10 of the Oregon Constitution were not violated either.  See Tupper v. Fairview Hosp. & Training Ctr., Mental Health Div., 276 Or. 657, 664 n. 2, 556 P.2d 1340, 1344 n. 2 (1976).

6
AFFIRMED.

*
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.  R. 36-3


[Cite as State v. Jones, 2011-Ohio-6215.]

                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MARION COUNTY

STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 9-11-06

        v.

TIMOTHY ALLEN JONES,                                      OPINION

        DEFENDANT-APPELLANT.

                 Appeal from Marion County Common Pleas Court
                            Trial Court No. 09CR0066

                                      Judgment Affirmed

                           Date of Decision: December 5, 2011

APPEARANCES:

        Timothy Allen Jones, Appellant

        Brent W. Yager and Gregory A. Perry for Appellee
Case No. 9-11-06

SHAW, J.

       {¶1} Jones appeals the February 10, 2011 judgment of the Marion County

Court of Common Pleas overruling his petition for postconviction relief.

       {¶2} On April 16, 2009, Jones was indicted on one charge of felonious

assault for beating another inmate, Joshua Criswell, while Jones was incarcerated

for domestic violence charges. Criswell’s spleen was ruptured as a result of the

attack. The incident was recorded on the surveillance cameras in the jail and

Criswell’s injuries were documented and treated by the jail nurse and other

medical personnel. The indictment was later amended to include a repeat violent

offender specification.

       {¶3} On January 11, 2010, after being convicted by a jury, the trial court

sentenced Jones to a prison term of eight years for the felonious assault conviction

and designated him as a repeat violent offender, which added four years to his

sentence, for a total twelve-year prison term.         Jones appealed the judgment

imposing his conviction and sentence to this Court, raising seven assignments of

error. The assignments of error claimed that the trial court erred in overruling

some of Jones’ pretrial motions, challenged the adequacy of the evidence before

the jury and the trial court to convict him, alleged that trial court permitted the jury

to hear inadmissible evidence during the trial, and asserted that Jones was

deprived of effective assistance of counsel.

                                          -2-
Case No. 9-11-06

         {¶4} On June 23, 2010, Jones filed a petition for postconviction relief

alleging that his trial counsel provided him ineffective assistance of counsel.

         {¶5} On October 4, 2010, this Court overruled Jones’ seven assignments of

error and affirmed the judgment of the trial court.

         {¶6} On December 22, 2010, Jones, without permission for leave from the

trial court, filed an amended petition for postconviction relief raising two

additional grounds for relief, which included an allegation that the prosecution

failed to preserve exculpatory evidence.

         {¶7} On February 8, 2011, the prosecution filed its response to Jones’

petition for postconviction relief.

         {¶8} On February 10, 2011, the trial court ruled on Jones’ petition for

postconviction relief. In a thorough opinion, the trial court addressed each of

Jones’ supporting grounds and overruled the petition finding it not well-taken.

Specifically, the trial court determined that Jones’ claims were barred by res

judicata.

         {¶9} Jones subsequently appealed the decision of the trial court overruling

his petition for postconviction relief, raising the following assignments of error.1

1
  We note that Jones submitted two briefs on appeal. His first brief was submitted on July 7, 2011, raising
six assignments of error. However, this Court did not accept Jones’ first brief because it exceeded the local
page limit rule. Jones filed his second brief on July 27, 2011, amending his brief to raise just three
assignments of error. The prosecution filed its brief on August 18, 2011, responding to the six assignments
of error in Jones’ first brief. However, we will only address the three assignments of error raised by Jones
in his second brief, which is the one that was properly filed in accordance with the local and appellate rules.

                                                     -3-
Case No. 9-11-06

                   ASSIGNMENT OF ERROR NO. I

      ATTORNEY JAVIER ARMENGAU WAS INEFFECTIVE AS
      COUNSEL IN THAT HE REFUSED TO OBTAIN AND
      SECURE VIDEO EVIDENCE FROM THE SECURITY
      CAMERA     SYSTEM   AT    THE   MULTI   COUNTY
      CORRECTION CENTER OF THE ALLEGED VICTIM
      JUSHUA [SIC] CHRISWELL [SIC] BODY PUNCHING WITH
      AND BEING ASSAULTING BY OTHER INMATES IN THE
      DAYS PRIOR TO THE INCIDENT INVOLVING THE
      APPELLANT.

                   ASSIGNMENT OF ERROR NO. II

      PROSECUTING ATTORNEY BRENT YAGER FAILED TO
      PRESERVE EXCULPATORY EVIDENCE OR, IN BAD
      FAITH,  FAILED    TO    PRESERVE FOR  TRIAL
      POTENTIALLY USEFUL EVIDENCE AND DISCLOSE IT
      TO THE APPELLANT AFTER HE WAS MADE FULLY
      AWARE OF ITS EXISTENCE.

                   ASSIGNMENT OF ERROR NO. III

      ATTORNEY JON DOYLE WAS INEFFECTIVE AS
      COUNSEL IN THAT HE (A) FAILED THROUGH THE
      PROCESS OF DISCOVERY, TO OBTAIN THE MEDICAL
      RECORDS OF JOSHUA CHRISWELL [SIC] FROM THE
      MULTI-COUNTY CORRECTIONAL CENTER. (B) FAILED
      TO DISCOVER THAT JOSHUA CHRISWELL [SIC] WAS
      INFACT [SIC], BEING TREATED BY THE DOCTOR AT
      THE MULTI-COUNTY CORRECTIONAL CENTER FOR A
      STOMACH PROBLEM ONE DAY PRIOR TO THE
      ALLEGED ASSAULT BY THE APPELLANT AND (C)
      FAILED TO SUBPOENA THE DOCTOR FROM THE
      MULTI-COUNTY     CORRECTIONAL   CENTER   WHO
      TREATED JOSHUA CHRISWELL [SIC] FOR A STOMACH
      PROBLEM AS A WITNESS FOR THE APPELLANT.

                               -4-
Case No. 9-11-06

        {¶10} For ease of discussion, we elect to address some of the assignments

of error together.

                         The First and Second Assignments of Error

        {¶11} The first and second assignments of error both relate to Jones’

contention that he could have been exonerated if certain surveillance video from

the jail would have been preserved. Jones alleges that this particular evidence

depicted the victim, Joshua Criswell, engaging in “body punching” with other

inmates days before Jones’ attack on Criswell. Jones claims that his initial trial

counsel provided him ineffective assistance of counsel because he failed to obtain

this evidence before the jail taped over the video.2 Jones also claims that the

prosecution acted in bad faith when it failed to preserve this evidence.

         {¶12} The Supreme Court of Ohio has previously held that “[u]nder the

doctrine of res judicata, a final judgment of conviction bars the convicted

defendant from raising and litigating in any proceeding, except an appeal from that

judgment, any defense or any claimed lack of due process that was raised or could

have been raised by the defendant at the trial that resulted in that judgment of

conviction or on an appeal from that judgment.” State v. Perry (1967), 10 Ohio

St.2d 175, 180, 226 N.E.2d 104. (Emphasis added). It is well established that res

2
  During the course of the court proceedings, Jones had two different court-appointed attorneys. His initial
attorney in the case was Attorney Armengau. Jones asked him to withdraw from his representation early in
the case. The trial court subsequently appointed Attorney Doyle to represent Jones.

                                                    -5-
Case No. 9-11-06

judicata bars the consideration of issues that could have been raised on direct

appeal. State v. Saxon, 109 Ohio St.3d 176, 2006–Ohio–1245, 846 N.E.2d 824, at

¶ 16–17.

       {¶13} Jones was represented by appellate counsel in the direct appeal of the

judgment imposing his conviction and sentence. In addition to the assignments of

error raised by Jones’ appellate counsel, Jones was permitted to submit a

supplemental brief in which he raised and argued four additional assignments of

error. Despite having ample opportunity, none of Jones’ assignments of error

discuss the issue now raised by Jones regarding this surveillance video.           In

addition, Jones has failed to provide any reason why he was unable to properly

raise these arguments in his first appeal. Accordingly, because Jones could have

raised this matter in his direct appeal of the judgment imposing his conviction and

sentence but chose not to, we find that the trial court did not err in concluding that

his claims are now barred by res judicata.

       {¶14} Moreover, we note that Jones and his trial counsel argued the defense

that Criswell’s spleen injury was caused by the roughhousing Criswell allegedly

engaged in with other inmates days prior to Jones’ attack. Even though Jones did

not have the surveillance video, he presented the testimony of three inmates at his

trial, who either engaged in or witnessed the “body punching” of Criswell. In the

end, the jury determined that Jones, not the actions of other inmates, caused

                                         -6-
Case No. 9-11-06

Criswell’s injuries based on the medical evidence presented as well as Criswell’s

own testimony denying that the roughhousing caused his spleen injury. Clearly,

this surveillance video would have been simply cumulative to the evidence

presented by Jones at his trial. For all these reasons, Jones’ first and second

assignments of error are overruled.

                          The Third Assignment of Error

       {¶15} In the third assignment of error, Jones argues that his trial counsel,

Attorney Doyle, was ineffective for allegedly failing to obtain the medical records

kept by the jail and other evidence which Jones claims demonstrated that Criswell

had been taking Zantac, a medication for heartburn and indigestion, around the

time his spleen was ruptured.

       {¶16} In his direct appeal of the judgment imposing his conviction and

sentence, Jones raised this same issue in his fifth assignment of error and we

determined that Jones’ arguments amounted to mere speculation and did not

substantiate a claim of ineffective assistance of counsel. See State v. Jones I, 3rd

Dist. No. 9-10-09, 2010-Ohio-4823. Because Jones has previously litigated this

issue in the direct appeal of his conviction, we conclude that the trial court did not

err in finding that his claim is now barred by res judicata. Jones’ third assignment

of error is overruled.

                                         -7-
Case No. 9-11-06

       {¶17} Based on the foregoing, the judgment of Marion County Court of

Common Pleas is affirmed.

                                                        Judgment Affirmed

ROGERS, P.J. and PRESTON, J., concur.

/jlr

                                    -8-


536 N.W.2d 383 (1995)
Beverly Spilovoy WILLIAMS, Petitioner and Appellee,
v.
Richard SPILOVOY, Respondent and Appellant.
Civ. No. 940288.
Supreme Court of North Dakota.
August 29, 1995.
*384 Irvin B. Nodland, of Irvin B. Nodland, P.C., Bismarck, for petitioner and appellee.
Naomi H. Paasch, of Strehlow, Bryan & Paasch, Casselton, for respondent and appellant.
David D. Hagler, Asst. Atty. Gen., Bismarck, submitted on brief for amicus curiae.
VANDE WALLE, Chief Justice.
Richard Spilovoy appeals from a restraining order preventing him from contacting his ex-wife, Beverly Williams. We reverse.
Richard and Beverly have engaged in protracted divorce litigation, including two prior appeals to this court. See Spilovoy v. Spilovoy, 511 N.W.2d 230 (N.D.1994); Spilovoy v. Spilovoy, 488 N.W.2d 873 (N.D.1992). On April 27, 1994, Beverly filed a petition seeking a restraining order against Richard. A hearing was held and, on May 19, 1994, the trial court issued a disorderly-conduct restraining order prohibiting oral or written communication between the parties, prohibiting them from coming within twenty-five feet of each other, and prohibiting them from being on each other's property except when exchanging the children for visitation.
The restraining order was issued under Section 12.1-31.2-01, N.D.C.C., which authorizes the court to issue a "no contact" order if it finds reasonable grounds to believe a party has engaged in disorderly conduct. Section 12.1-31.2-01(1) defines disorderly conduct:
"`Disorderly conduct' means intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person. Disorderly conduct does not include constitutionally protected activity."
We construed these statutory provisions, enacted in 1993, in Svedberg v. Stamness, 525 N.W.2d 678 (N.D.1994). We determined that the requirement that the court find "reasonable grounds" to believe disorderly conduct has been committed was synonymous with "probable cause." Svedberg, supra, 525 N.W.2d at 681-682. We thus concluded that "[r]easonable grounds exist for purposes of this section when facts and circumstances presented to the judge are sufficient to warrant a person of reasonable caution to believe that acts constituting the offense of disorderly conduct have been committed." Svedberg, supra, 525 N.W.2d at 682.
In support of its determination that there were reasonable grounds to believe that Richard had engaged in disorderly conduct, the trial court found the following facts:
"1. that the respondent has made calls to the petitioner which were harassing in nature.
"2. that the petitioner is fearful of close contact with the respondent.
"3. that the respondent has utilized the children and episodes of visitation for harassment of the petitioner."
Our review of the hearing transcript fails to reveal any evidence of specific instances of conduct by Richard which supports these findings. Rather, Beverly's testimony is replete with vague, general allegations of harassment. In order to support a disorderly-conduct restraining order under Section 12.1-31.2-01, N.D.C.C., the petitioner must present evidence of specific acts or threats constituting disorderly conduct. See Svedberg, supra, 525 N.W.2d at 682.
Beverly points to evidence of an April 26, 1994, telephone call from Richard as the event which precipitated her decision to seek a restraining order. Without specific details, *385 she characterizes the telephone call as harassing and verbally abusive. Richard recorded the telephone call, and the tape was admitted into evidence at the hearing. Richard had telephoned to advise Beverly that she would not be receiving an expected child support payment through income withholding because a review had shown he was actually ahead in his support payments. A transcript of the taped telephone call reveals no language or actions by Richard which rise to the level of disorderly conduct under the statute. Richard made no harassing or abusive remarks to Beverly during the short telephone conversation. However, the transcript of the call shows that Beverly used profanity and threatened to "personally visit [Richard's] employer" to secure income withholding.
This is the only evidence, other than Beverly's vague, conclusory allegations, to support the court's finding that Richard made harassing telephone calls. There was no evidence that Richard made a large number of calls to Beverly or otherwise interfered with her "safety, security, or privacy." We conclude the evidence does not support the trial court's finding of harassing telephone calls.
The court also found that Richard had "utilized the children and episodes of visitation for harassment" of Beverly. Beverly has not called our attention to evidence in the record to support this finding, nor do we upon review of the record find any evidence of specific instances where Richard used the children or visitation to harass Beverly.
The court also found that Beverly "is fearful of close contact with" Richard. Absent evidence either of specific instances of actions or threats by Richard constituting disorderly conduct or the basis for her fright, Beverly's subjective fear is not sufficient to support an order under Section 12.1-31.2-01, N.D.C.C. The trial court noted at the conclusion of the hearing that Beverly is "super-sensitive and inadequate to function in this life and have a relationship with other people that might involve some controversies...."
We conclude that Beverly failed to present evidence sufficient to warrant a person of reasonable caution to believe that Richard engaged in acts or threats constituting disorderly conduct. Vague generalities do not suffice. Conclusory testimony that "he harassed me," "he abused me," or "he threatened me" does little to aid the trial court in determining whether the alleged perpetrator's actions rise to the level of disorderly conduct under the statute.
It is not enough under the statute that the petitioner for a restraining order wants the other person out of the petitioner's life. Conversely, because of previous physical or emotional abuse, in some instances the person restrained is well aware that his or her mere presence is sufficient to cause such emotional stress as to adversely affect the safety, security, or privacy of the other person. Cf. State v. Monson, 518 N.W.2d 171 (N.D.1994) [probationer's presence intended to intimidate victim]. A restraining order might well be justified in that instance. The trial court made no findings of prior abuse nor would the record support such a finding.
We therefore caution that our opinion should not be read as placing unreasonable barriers upon parties seeking restraining orders under the statute. We recognize that Section 12.1-31.2-01, N.D.C.C., is the legislature's response to a serious and growing problem in this state. The difficulty in this case is with the insufficiency of the evidence presented to support the order. Because of the grave consequences of such an order, the statute requires as a prerequisite a showing of specific acts or threats constituting disorderly conduct. To warrant the restrictions placed upon a party by a "no contact" order, the party seeking the order must present more than uncertain, conclusory statements. Although a party may not welcome an ex-spouse's mere presence or telephone calls, a certain amount of contact must be expected when, as here, there is split custody of the children and visitation exchanges. Unless there is evidence that the contacts rise to the level of disorderly conduct under the statute, a "no contact" order is not authorized.
The disorderly-conduct restraining order is reversed.
SANDSTROM, NEUMANN, LEVINE and MESCHKE, JJ., concur.


                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0691n.06
                            Filed: August 10, 2005

                                          No. 04-3787

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

GJYLIANA BZHETAJ;                  )
ELIS BZHETAJ,                      )
                                   )
         Petitioners,              )                        ON PETITION FOR REVIEW
                                   )                        FROM AN ORDER OF
v.                                 )                        THE BOARD OF IMMIGRATION
                                   )                        APPEALS
ALBERTO GONZALES, Attorney General )
                                   )
         Respondent.               )

         BEFORE: MERRITT and DAUGHTREY, Circuit Judges, and PHILLIPS,* District
Judge.

         PER CURIAM. Gjyliana Bzhetaj, an Albanian national, filed the instant petition to

review the denial of her application for asylum and withholding of removal by the Board of

Immigration Appeals. The immigration judge determined that Bzhetaj filed an untimely

application, that she lacked credibility, and that she had failed to present sufficient proof of

past persecution or danger of future harm. The Board of Immigration Appeals affirmed the

immigration judge’s order on the same grounds. Because the Board’s determination of the

timeliness of an application for asylum is unreviewable by this court and because the

remainder of the Board’s determinations are supported by substantial evidence, we must

DENY Bzhetaj’s petition.

         *
         The Honorable Thomas W. Phillips, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
                        PROCEDURAL AND FACTUAL HISTORY

       On September 30, 2000, petitioner Bzhetaj and her son, Elis Bzhetaj, both citizens

of Albania, entered the United States at Chicago O’Hare International Airport using

fraudulent passports.     They were interviewed by officers of the Immigration and

Naturalization Service, who initiated removal proceedings against them and referred them

for a hearing with an immigration judge. Bzhetaj conceded removability and indicated that

she would seek asylum, withholding of removal, and protection under Article 3 of the United

Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (UNCAT). See 8 U.S.C. §§ 1158(a)(1), 1231(b)(3).

       Bzhetaj’s next hearing before the immigration judge was postponed three times until

it was finally held on January 11, 2002. Bzhetaj filed her application for asylum and

withholding of removal at this hearing, over a year after she entered the country. She

named her son, Elis, as an ancillary beneficiary to the application. In her application, she

claimed that her husband had been a member of the Albanian Democratic Party since 1992

and had been harassed by the governing Socialist Party, when police officers had stopped

him in January 1998 and detained him for nine days in the city of Koplik. The police closed

her husband’s fuel station several times, she said, due to his political beliefs. She also

claimed that someone shot at the fuel station in December 1999. Her husband left Albania

for the United States in February 2000. She claimed that in June of that year, a man

knocked on her window while she was sleeping, asked her to open the door, and, when she

refused, threatened to kidnap her son. Together with her application, Bzhetaj provided her

birth and marriage certificates and her son’s birth certificate.

                                              2
        Following a hearing on January 23, 2003, the immigration judge issued an oral

decision denying Bzhetaj’s application. The immigration judge determined that Bzhetaj was

ineligible for asylum for having filed her application more than one year after her entry into

the country and having failed to establish exceptional circumstances to excuse the delay.1

Even if Bzhetaj were eligible, the immigration judge found, she lacked credibility due to her

conflicting and gradually embellished versions of events. Finally, the immigration judge

determined that Bzhetaj had failed to demonstrate that her problems in Albania rose to the

level of past persecution or that they were the result of her husband’s political activities.

The immigration judge characterized Bzhetaj’s application as frivolous, making her

ineligible for any future immigration benefits, and denied her application. The Board of

Immigration Appeals reversed the immigration judge’s finding that the application was

frivolous, but affirmed the denial of Bzhetaj’s application upon the same grounds as the

immigration judge had relied. Bzhetaj now petitions this court to review the Board’s order.

                                             DISCUSSION

                                     I. Application for Asylum

        This court has no jurisdiction to review the Board’s determination that Bzhetaj’s

application for asylum was untimely. An alien must file for asylum within one year of their

arrival in the United States. See 8 U.S.C. § 1158. If an alien fails to file within the deadline,

an immigration judge nonetheless may consider the application if the alien demonstrates

        1
           Bzhetaj claimed that she waited to file her application because she was required to do so in “open
court.” She also claimed that the Bureau of Citizenship and Immigration Services lost her file and requested
additional time to find it.

                                                     3
“to the satisfaction of the Attorney general either the existence of changed circumstances”

or “extraordinary circumstances” causing the delay. 8 U.S.C. § 1158(a)(2)(D). The same

statute provides that no court shall have jurisdiction to review any determination of the

Attorney General regarding exceptions to the filing deadline. See 8 U.S.C. § 1158(a)(3).

This court is therefore without jurisdiction to review the Board’s decision that no

extraordinary circumstances existed to excuse Bzhetaj’s tardy application. See Castellano-

Chacon v. INS, 341 F.3d 533, 544 (6th Cir. 2003).

                              II. Withholding of Removal

       Bzhetaj argues that the Board was wrong to deny her application for withholding of

removal, pursuant to the Immigration and Nationality Act (INA) and the UNCAT. Unlike her

application for asylum, Bzhetaj’s application for withholding of removal was not subject to

a time limit. See 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 208.15; Castellano-Chacon, 341 F.3d

at 544. The immigration judge determined that Bzhetaj lacked credibility and, even if

believed, was not entitled to withholding of removal because she failed to demonstrate that

her life or freedom would be threatened if she were to return to Albania. We must uphold

the denial of withholding of removal if supported by substantial evidence in the record. See

Sylla v. INS, 388 F.3d 924, 925 (6th Cir. 2004). We review the Board’s credibility

determinations under the same standard and treat them as “conclusive unless any

                                             4
reasonable adjudicator would be compelled to conclude to the contrary.”2 See id. (quoting

8 U.S.C. § 1252(b)(4)(B)).

        The record in this case does not compel the court to reverse the Board’s decision.

From her sworn statement upon entry, to her credible fear interview, to her asylum

application, to her testimony at the hearing, Bzhetaj continued to change and embellish her

version of events in Albania. In her initial interview at Chicago O’Hare International Airport,

Bzhetaj claimed that someone had killed her husband’s cousin and that she came to the

United States to be with her husband and to raise her son safely. By the January 23, 2003,

hearing, Bzhetaj had changed her story several times, adding allegations of political

harassment and finally rape. In addition, she failed to produce any corroborating testimony

or documents to support her account, such as evidence of her husband’s political activities.

This state of the record put Bzhetaj’s credibility in question and did not compel a finding

that Bzhetaj risks future persecution in Albania.

                                                CONCLUSION

        The Board’s decision finding Bzhetaj’s application for asylum untimely is

unreviewable by the court, and the Board’s denial of withholding of removal is supported

by substantial evidence in the record. We therefore DENY Bzhetaj’s petition for review.

        2
             The government contends that Bzhetaj waived review of her withholding claim because she failed
to raise it in her brief to the court. Though the bulk of Bzhetaj’s brief attacks the Board’s invocation of the time
limit for her asylum application, she does argue that the Board was wrong to deny her application for asylum
and withholding of removal on substantive grounds. See Petitioner’s Brief at 17-20.

                                                         5


                                                                     PUBLISH

              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                         FOR THE ELEVENTH CIRCUIT         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                            SEPTEMBER 18, 2000
                               _______________
                                                             THOMAS K. KAHN
                                                                  CLERK
                                 No. 98-3747
                               _______________

                   D. C. Docket No. 98-01522-CIV-T-26F

IN RE: CELOTEX CORP.,

                                          Debtor.

SPEIGHTS & RUNYAN,

                                          Plaintiff-Appellant,

     versus

CELOTEX CORP., U.S. TRUSTEE,
KEVIN E. IRWIN,
                                          Defendants-Appellees.

                        ______________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                   ______________________________
                           (September 18, 2000)

Before BIRCH, RONEY and FAY, Circuit Judges.

BIRCH, Circuit Judge:
      This case presents an issue of first impression for this circuit. We must

decide whether a creditor’s attorney may recover fees and expenses for a

“substantial contribution”, 11 U.S.C. § 503(b)(3)(D), in a bankruptcy proceeding

where the creditor has an adverse interest to the debtor. We hold that he may

recover such fees and expenses. Accordingly, we REVERSE and REMAND.

                                 I. BACKGROUND

      Appellant, the law firm of Speights & Runyan (“S&R”), petitioned the

bankruptcy court for an award of attorneys’ fees on the grounds that the firm and,

in particular, attorney Daniel A. Speights, made a substantial contribution to the

successful approval of a consensual plan of reorganization in the Chapter 11

bankruptcy proceeding. The bankruptcy judge denied the award on the grounds

that S&R had an adverse interest to the debtors and that S&R’s services were

conducted on behalf of its clients and not for the particular benefit of the estate.

The bankruptcy judge also concluded that, should his decision be reversed on

appeal, S&R should be awarded compensation for 1,200 hours of work at a

blended lodestar rate of $225.00 per hour, or a total of $270,000.00. The district

court affirmed, finding that the bankruptcy judge did not abuse his discretion in

refusing to award fees.

      S&R brought its petition at the conclusion of a lengthy and complex

                                           2
bankruptcy proceeding involving claims for asbestos related property damage and

personal injuries. The debtors, Celotex Corporation and its subsidiary Carey

Canada, Inc. (“Debtors”), filed voluntary petitions for reorganization under

Chapter 11 of the bankruptcy code in 1990. Over the next six years, several

proposed plans for reorganization were put forward by the debtors in an attempt to

achieve a consensual plan. In addition to the debtors, the parties involved in the

negotiations included the unsecured creditors’ committee, the unofficial committee

of co-defendants, the asbestos health claimants committee, the asbestos property

damage claimants committee, and the legal representative of unknown bodily

injury claimants. S&R represented several individual property damage claimants.

       After a plan of reorganization was approved, S&R filed an Amended

Application and Declaration for Attorneys’ Fees (the “Application”), B.R. Doc.

11008,1 pursuant to 11 U.S.C. § 503(b)(3)-(4). The only opposition to S&R’s

petition for administrative expenses came from the United States Trustee and the

Asbestos Settlement Trust. The debtors and several committee representatives

filed affidavits or testified in support of S&R’s fee application.

       1
         The record from the bankruptcy court was attached as an exhibit to R1-1 of the district
court record. For ease of reference, all record citations are provided by using the bankruptcy
court document number.

                                                3
                                 II. JURISDICTION

      As an initial matter, we note that this court has jurisdiction to hear this

appeal pursuant to 28 U.S.C. § 158(d). Section § 158(d) grants us jurisdiction to

hear appeals from final orders. In a bankruptcy case, a final order is defined as an

order that terminates any particular adversary proceeding. See In re Hillsborough

Holdings Corp., 116 F.3d 1391, 1393 (11th Cir. 1997). The denial of S&R’s fee

petition is such an order, and jurisdiction is appropriate.

                           III. STANDARD OF REVIEW

      We review an award or refusal to award attorney’s fees for abuse of

discretion. In re Hillsborough Holdings Corp., 127 F.3d 1398, 1401 (11th Cir.

1997). A bankruptcy judge abuses his discretion if he fails to apply the correct

legal standard or his factual findings are clearly erroneous. Id. See also In re

Prince, 40 F.3d 356, 359 (11th Cir. 1994) (holding that we review factual findings

for clear error and legal conclusions de novo).

                      IV. SUBSTANTIAL CONTRIBUTION

A. The Standard

      Section 503 of Chapter 11 of the bankruptcy code provides that certain

administrative expenses “shall be allowed” after notice and a hearing. 11 U.S.C. §

503(b) (emphasis added). Included in the list of administrative expenses awarded

                                           4
under § 503(b) are the expenses incurred by “a creditor, an indenture trustee, an

equity security holder, or a committee representing creditors or equity security

holders . . . in making a substantial contribution in a case under Chapter 9 or 11 of

this title . . . .” Id. at § 503(b)(3)(D). Section 503(b)(4) provides for a related

award of attorney fees. In creating these provisions, Congress did not specifically

define the term “substantial contribution.” As such, a conflict has developed

among the circuits regarding whether the motivation behind a creditor’s actions

should disqualify him from receiving fees where a contribution has been made to

the resolution of the bankruptcy proceeding. Compare In re DP Partners, Ltd., 106

F.3d 667, 673 (5th Cir. 1997) (noting that the plain language of the statute does not

require “a self-deprecating, altruistic intent as a prerequisite to recovery . . . .”)

with Lebron v. Mechem Financial, Inc., 27 F.3d 937, 944 (3d Cir. 1994) (finding

that the benefit to the estate “must be more than an incidental one” arising out of

the pursuit of self-interest) and In re Lister, 846 F.2d 55, 57 (10th Cir. 1988)

(“Efforts undertaken by a creditor solely to further his own self-interest . . . will not

be compensable, notwithstanding any incidental benefit accruing to the bankruptcy

estate.”). We find the logic of the Fifth Circuit, as stated in DP Partners,

compelling.

       In interpreting a statute, we begin by examining the text and assigning the

                                             5
“plain, ordinary, and most natural meaning” to terms not otherwise defined in the

text itself. Boca Ciega Hotel, Inc. v. Bouchard Transp. Co., 51 F.3d 235, 237 (11th

Cir. 1995). In applying the plain meaning of the text, other circuits have held that

a substantial contribution is one that “‘foster[s] and enhance[s], rather than

retard[s] or interrupt[s] the progress of reorganization.’” In re Consolidated

Bancshares, Inc., 785 F.2d 1249, 1253 (5th Cir. 1986) (quoting In re Richton Int’l

Corp., 15 B.R. 854, 856 (Bankr. S.D.N.Y. 1981)). See also Lebron, 27 F.3d at 944

(quoting Consolidated Bancshares).

      The United States Trustee and the Asbestos Settlement Trust look beyond

the plain language of the statute and rely on Lister and Lebron to support their

argument that the bankruptcy judge was correct in considering S&R’s motivation

to determine whether the firm’s actions “transcended self-protection.” Lebron, 27

F.3d at 944. See also Lister, 846 F.2d at 57. This requirement is not indicated by

the language of the statute. Indeed, the Fifth Circuit rejected this argument, noting

that “nothing in the Bankruptcy Code requires a self-deprecating, altruistic intent

as a prerequisite to recovery of fees and expenses under section 503.” DP Partners,

106 F.3d at 673.

      Examining a creditor’s intent unnecessarily complicates the analysis of

whether a contribution of considerable value or worth has been made. The Third

                                           6
Circuit correctly observed that expenses are reimbursable only if they “‘directly

and materially contributed’ to the reorganization.” Lebron, 27 F.3d at 943 (quoting

Steere v. Baldwin Locomotive Works, 98 F.2d 889, 891 (3d Cir. 1938)). See also

Lister, 846 F.2d at 57 (stating that the test is “whether the efforts of the applicant

resulted in an actual and demonstrable benefit to the debtor’s estate and the

creditors.”). The degree of benefit conferred or contribution made is “not

diminished by selfish or shrewd motivations.” DP Partners, 106 F.3d at 673.

Accordingly, we adopt the Fifth Circuit’s holding “that a creditor’s motive in

taking actions that benefit the estate has little relevance in the determination

whether the creditor has . . . ma[de] a substantial contribution to a case.” Id.

      This holding is consistent with common sense. Congress chose to include

creditors in the class of those who may receive administrative expenses and fees

for a substantial contribution, see 11 U.S.C. § 503(b)(3), and it is difficult to

imagine a circumstance in which a creditor will not be motivated by self-interest in

a bankruptcy proceeding. To impose an altruism requirement on the ability to

obtain administrative expenses under § 503(b)(3)-(4) would effectively render the

section meaningless as to creditors.

B. S&R’s Fee Application

      Turning to the petition for fees in this case, we find that the bankruptcy

                                           7
judge should have awarded fees to S&R for a substantial contribution. In his order

denying the fee petition, the bankruptcy judge found that S&R “did perform the

services stated in court in this case” but nevertheless found that the substantial

contribution standard had not been met because S&R “had an adverse interest to

the Debtors, and . . . the end result of Applicant’s services were directed just as

much toward Applicant’s particular clients . . . as compared to the Debtors’ estates

. . . .” Order Denying Speights & Runyan’s Amended Application and Declaration

for Attorney’s Fees (the “Order”), B.R.Doc. 11777, at 2. The bankruptcy judge

also specifically rejected the holding of DP Partners that we today adopt. See

Motions Hearing Transcript, Feb. 6, 1998 (the “Transcript”), B.R. Doc. 11816, at

225-26. We have determined that the motive of the petitioner should not be a

factor in determining whether a substantial contribution has been made in the

bankruptcy proceeding. If S&R produced evidence that they performed services

constituting a substantial contribution, then an award of fees is appropriate.

       In its fee petition, S&R set out in some detail the work which the firm

considered to be a substantial contribution.2 See generally, Application, B.R. Doc.

11008. In addition, several parties involved in the bankruptcy proceeding attested

       2
        Specifically, the petition related Speights’s prior experience with asbestos-related
bankruptcies and the degree of involvement of Speights, both in mediation (at the request of the
Debtors) and in plan negotiations with, among others, the representative of the bodily injury
claimants. See Application, B.R. Doc. 11008, at 1-3, 5-6.

                                                8
to the efforts of S&R to achieve a successful plan of reorganization. John Kozyak,

the Asbestos Property Damage committee representative, submitted an affidavit in

support of the fee petition which noted that S&R provided “extraordinary service”

and that Speights “worked tirelessly for several years . . . to help the Debtors and

other parties avoid an expensive, time consuming confirmation battle and develop

a nearly consensual, confirmable plan of reorganization.” Statement in Support of

Speights & Runyan’s Application and Declaration for Attorneys’ fees, B.R. Doc.

11674, at 1. Kozyak also noted that S&R did this work with no assurance that the

firm would be compensated. See id. The Debtors also filed a response to S&R’s

petition supporting the request and noting the “unique skill and expertise”

contributed by the firm. Debtors’ Response to Speights & Runyan’s Application

and Declaration for Attorneys’ Fees, B.R. Doc. 11638, at 3.

      Evidence was also presented at a hearing on various fee petitions held by the

bankruptcy judge. See generally, Transcript, B.R. Doc. 11816. Speights testified

that his actions went beyond simple representation of his clients when he worked

to create a consensual plan of reorganization, and that, without his involvement,

achievement of a consensual reorganization plan would not have been

                                          9
accomplished.3 See id. at 86-88. This testimony was supported by testimony from

other parties. Kozyak testified that Speights’s knowledge, experience and the

respect that Speights had earned from other parties made progress toward

reorganization possible. See id. at 91-94. The Debtors’ counsel, Mr. Warren,

testified that the Debtors, while opposed to most petitions for fee awards,

supported S&R’s application. See id. at 98-99. The Debtors supported it because

“the role that Mr. Speights played provide[d] the tangible and demonstrative

benefit to the estate and the creditors of the estate. Again, not just Mr. Speights’

creditors.” Id. at 101.

       The representative of the bodily injury claimants, Mr. Locks, also testified

that successful negotiation of a consensual, and ultimately approved, plan of

reorganization “couldn’t have been done without Dan Speights because he really

understood how to do it . . . .” Id. at 134. Indeed, the bankruptcy judge himself

noted that the case was “phenomenally unique. Three or four times larger than

       3
        Specifically, Speights testified as follows.

       I could have represented my individual clients and ultimately gotten some money
               out of this, pursuant to some plan or liquidation process, if a deal had not been
               made . . . What I was asked to do . . . was to try to represent not only the claims of
       all property damage claimants . . . but to work with Celotex and [the bodily injury
               claimants] . . . in trying to put together . . . a consensual plan. . . .I will say but for
my     involvement I don’t believe we would have had this deal.

Transcript, B.R. Doc. 11816, at 86-88.

                                                   10
Manville with a heck of a lot more people doing some really unique, again,

energetic activities.” Id. at 200.

       The Settlement Trust and United States Trustee opposed the petition. The

United States Trustee filed an objection with the court, which focused on specific

expenses and fees which should not be allowed, but the Trustee did not argue that

S&R did not make a substantial contribution. See United States Trustee’s

Objection to Speights & Runyan’s Application and Declaration for Attorneys’

Fees, B.R. Doc. 11667, at 2-3. Indeed, at the hearing, the United States Trustee

stated that “[w]e do believe they did contribute substantially to the case.”

Transcript, B.R. Doc. 11816, at 151. The Settlement Trust included S&R’s

petition in its “Omnibus Objection” to all administrative expense potions filed.

See Omnibus Objection of the Asbestos Settlement Trust to Various

Administrative Claim Applications, B.R. Doc. 11219, at 20. In its briefs, however,

the Settlement Trust acknowledged that, because “the Trust did not participate in

the bankruptcy cases . . . it does not have enough knowledge about the relative

contributions of the Law Firm Claimants [including S&R]” to effectively oppose

the claims on the merits. Id.

      In sum, the evidence accepted as true by the bankruptcy judge was that

S&R, and Speights in particular, played a significant role in the successful

                                          11
negotiation of a consensual plan, and that a large portion of credit for achievement

of the plan was attributable to Speights because of his credibility and the

experience in asbestos-related bankruptcy that he brought to the process. In DP

Partners, a substantial contribution was found by the bankruptcy court where a

creditor’s intervention led to an increase in the asset pool of $3,000,000. See 106

F.3d at 673. We refrain today from defining with specificity what constitutes a

substantial contribution. We do find, however, that where, as here, evidence

supports the conclusion that without S&R’s efforts a reorganization plan may not

have been achieved, a substantial contribution has been demonstrated.

Accordingly, we REVERSE the district court’s decision.

                              V. AMOUNT OF FEES

      Our inquiry does not end with the substantial contribution analysis. In an

alternative holding, the bankruptcy judge determined that, should S&R be found to

have made a substantial contribution, then 1200 hours of S&R’s work would be

compensable under § 503(b)(4). Order, B.R. Doc. 11777, at 2. S&R does not

appeal that decision. S&R does challenge the lodestar rate of $225.00 per hour

used by the bankruptcy judge to determine the total dollar amount of fees.

      Section 503(b)(4) expressly provides that allowable attorney compensation

should be “based on the time, the nature, the extent, and the value of such services,

                                          12
and the cost of comparable services other than in a case under this title . . . .” 11

U.S.C. § 503(b)(4). This standard is identical to the standard in § 330(a)(1) which

provides for attorney’s fees for counsel to the bankruptcy trustee. See 11 U.S.C. §

330(a)(1). In Grant v. George Schumann Tire & Battery Co., 908 F.2d 874 (11th

Cir. 1990), we held that a judge must calculate the hourly rate using twelve factors

set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.

1974). See Grant, 908 F.2d at 877-78. In addition, a judge determining a fee award

must explain how his consideration of the Johnson factors affected the award. Id.

In other words, the judge may not simply announce the rate, but must also set out

in the record how he determined that rate.

      In the Order, the bankruptcy judge did not explain how he determined that

$225.00 per hour was the appropriate rate at which to compensate S&R. Turning

to the hearing transcript, the only reference to the hourly rate determination is the

following statement by the bankruptcy judge:

      [T]he lodestar for each firm would have been $225 an hour. I reject their
      mathematical blending hourly rate of $356 an hour or thereabouts. Not
      suggesting that none of those parties would be worth it, but that’s not what
      we’ve been paying around here.

Transcript, B.R. Doc. 11816, at 227.

      We make no judgment as to the adequacy of the rate determined by the

bankruptcy judge. It is possible that he considered all of the appropriate factors in
                                           13
determining the rate set forth in the Order. Nevertheless, because the record

provides no explanation for the hourly rate chosen, we must REMAND this case

for determination of the appropriate hourly rate to be applied for the 1,200 hours of

work for which S&R is to receive compensation.

                                VI. CONCLUSION

      We find that the bankruptcy judge abused his discretion by applying the

wrong legal standard, and the district court erred in finding no abuse of discretion.

Accordingly, we REVERSE and REMAND for further proceedings consistent with

this opinion.

                                          14
RONEY, Circuit Judge, dissenting:

         I respectfully dissent. I would remand the case to the bankruptcy court to

determine whether the services for which Speights and Runyan seek to be

compensated constitute a substantial contribution under 11 U.S.C. § 503(b)(3) &

(4), under the correct legal standards. Assuming that the court correctly holds that

the bankruptcy court applied the wrong legal principle in examining the facts, that

court should make the final factual determination without that legal error, not this

Court.

                                           15


902 F.2d 1558
Aero Warehouse Corporation, Pesnell (Gary D., Judy A.), Nagy(Charles S., Lynne I.)v.Commissioner of Internal Revenue
NOS. 89-2002, 89-2004
United States Court of Appeals,Third Circuit.
APR 10, 1990

1
Appeal From:  U.S.T.C.

2
AFFIRMED.


         NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
                __________________________

                   JAMES J. STANLEY,
                       Petitioner,

                             v.
       MERIT SYSTEMS PROTECTION BOARD,
                  Respondent.
                __________________________

                        2011-3195
                __________________________

   Petition for review of the Merit Systems Protection
Board in case no. SF0752100806-I-1.
               __________________________

                 Decided: January 17, 2012
                __________________________

      JAMES J. STANLEY, of San Bernardino, California, pro
se.

   SARA B. REARDEN, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
              __________________________
STANLEY   v. MSPB                                         2

     Before LOURIE, DYK, and PROST, Circuit Judges.
PER CURIAM.

    James J. Stanley appeals the decision of the Merit
Systems Protection Board (“Board”) dismissing his peti-
tion for review as untimely. For the reasons set forth
below, we affirm.

                     I. BACKGROUND

     On June 29, 2010, Mr. Stanley filed an appeal with
the Board from the Department of Veterans Affairs
employment action removing him from his position of
Materials Handler. The administrative judge affirmed
the agency’s decision to remove Mr. Stanley in an initial
decision on October 22, 2010. Stanley v. Dep’t of Vet.
Affairs, SF0752100806-I-1 (M.S.P.B. Oct. 22, 2010) (“Ini-
tial Decision”).

    On October 22, 2010, the Initial Decision was sent to
Mr. Stanley by U.S. Mail and to his representative, Phil-
lip Haynes, by electronic mail. In the Initial Decision, the
administrative judge stated that the decision “would
become final on November 26, 2010, unless a petition for
review is filed by that date or the Board reopens the case
on its own motion.” Initial Decision 12.

    Mr. Stanley did not file a petition for review until De-
cember 1, 2010. On June 16, 2011, the Board issued a
final non-precedential order dismissing Mr. Stanley’s
petition for review as untimely filed with no showing of
good cause for the delay. Stanley v. Dep’t of Vet. Affairs,
SF0752100806-I-1 (M.S.P.B. June 16, 2011). In its deci-
sion, the Board noted that the certificate of service
showed that Mr. Haynes was served electronically on
October 22, 2010. Under the Board’s regulations, docu-
3                                           STANLEY   v. MSPB

ments served electronically are presumed to have been
received on the day of electronic submission. 5 C.F.R.
§ 1201.14(m)(2). Accordingly, the Board found that Mr.
Haynes received the Initial Decision on October 22, 2010.
Because service on a party’s representative—here, Mr.
Haynes—is imputed to the party, the Board concluded
that Mr. Stanley also received the Initial Decision on
October 22, 2010. The Board further found that Mr.
Stanley had not shown good cause for missing the filing
deadline and dismissed his petition for review as un-
timely. Mr. Stanley has appealed. We have jurisdiction
under 28 U.S.C. § 1295(a)(9).

                      II. DISCUSSION

    This court’s review of a decision of the Board is lim-
ited by statute. 5 U.S.C. §7703(c); O’Neill v. Office of
Pers. Mgm’t, 76 F.3d 363, 364-65 (Fed. Cir. 1996). We
may reverse a decision of the Board only if it is “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed;
or (3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c).

    On appeal, Mr. Stanley does not, in his opening brief,
address the Board’s dismissal of his petition for review as
untimely but rather reargues the merits of his underlying
adverse employment action claim. The only issue before
this court, however, is whether the Board abused its
discretion in declining to waive its regulatory time limit
for filing a petition for review. In his memorandum in
lieu of oral argument, Mr. Stanley argued that Mr.
Haynes had represented to him that his petition for
review was timely filed an that he was unaware that Mr.
STANLEY   v. MSPB                                           4

Haynes had not filed his petition for review by the dead-
line.

     The Board will waive its time limit for filing a petition
for review only upon a showing of good cause. 5 C.F.R.
§ 1201.114(f). “[W]hether the regulatory time limit for an
appeal should be waived based upon a showing of good
cause is a matter committed to the Board’s discretion and
this court will not substitute its own judgment for that of
the Board.” Mendoza v. Merit Sys. Prot. Bd., 966 F.2d
650, 653 (Fed. Cir. 1992) (en banc). Here, the Board
found that Mr. Stanley’s appeal was untimely and that he
had not demonstrated good cause for missing the filing
deadline. Although Mr. Stanley may have relied on the
statements of his representative who untimely filed his
petition for review, such reliance is not a basis upon
which to establish good cause for his delay in filing. See,
e.g., Harris v. Merit Sys. Prot. Bd., 10 F. App’x 918, 920
(Fed. Cir. 2001). Based on the deference we afford to the
Board, we see no reason to reverse the Board’s decision.
Consequently, the decision of the Board is affirmed.

                           COSTS

    Each party shall bear its own costs.

                        AFFIRMED


151 N.W.2d 473 (1967)
Willard M. HENDERSON, Appellant,
v.
IOWA STATE HIGHWAY COMMISSION, Appellee.
No. 52515.
Supreme Court of Iowa.
June 6, 1967.
*474 K. C. Christianson, Jewell, and Alan Loth, Fort Dodge, for appellant.
Richard C. Turner, Atty. Gen., L. Michael McGrane, Asst. Atty. Gen., and Gerald L. Shaffer, Fort Dodge, for appellee.
MOORE, Justice.
This is a road condemnation in conjunction with construction of Interstate Highway 35 north through Hamilton County. Prior to condemnation, plaintiff, Willard M. Henderson, owned and was operating a farm including the following described real estate;
SE ¼ SW ¼ and SW ¼ SE, ¼ of Section 6, and NW ¼ NE ¼ of Section 7, both in Township 86, North of Range 23, West 5th P.M., Hamilton County, Iowa.
An east-west county road ran along the south side of the two quarters in section 6 and the north side of plaintiff's above described 40 in section 7. Plaintiff's home and some of his farm buildings were in the northwest corner of his land in section 7. Other farm buildings were directly north across the county road. This east-west county road between the sections was plaintiff's sole access.
The Iowa State Highway Commission's notice to Henderson and the papers filed with the sheriff described by metes and bounds the area being condemned. The initial papers condemned the fee title to the described area, including the county road and stated plaintiff was to have no right of direct access.
The plat filed showed interstate 35 would take land along the west side of plaintiff's 40 in section 7 and divided and took part of his two 40's in section 6. It also showed a 16 foot high overpass would be constructed just north of the existing county road. This took plaintiff's buildings on the north side of the county road and some of his land both east and west of interstate 35. The overpass east of 35 extended the entire length of plaintiff's above described land.
*475 The duly appointed sheriff's jury met, viewed the property and assessed Henderson's damage at $25,500.
The highway commission then appealed to the district court. The notice of appeal contained the same description and statements as used in the commission's prior papers. Henderson, as required by Code section 472.21, filed a petition as plaintiff in the district court. He therein asked he be awarded $41,000.
During the jury trial in district court the evidence, including plaintiff's testimony, pointed out plaintiff's home and other buildings would be bounded on the west by interstate 35 and on the north by the high overpass without any right of ingress or egress other than building a road to the east on his land until he reached the county road east beyond the overpass. Plaintiff stated this would reduce his crop acreage about 10 acres. It was also shown he would have no access from his east 40 in section 6.
Plaintiff testified the fair market value of his farm, which totaled 240 acres, before condemnation was $150,000 and $90,000 thereafter. Another witness stressed the fact plaintiff's farm was being divided into three separate parcels and gave substantially the same estimates of value before and after condemnation.
Following this evidence and during the third day of trial the commission filed an amendment to its answer granting to plaintiff a written easement over a part of the old county road just north of plaintiff's home and remaining buildings. It thus gave plaintiff a right to use part of the old county road and access to the overpass some distance east of plaintiff's home. A farm entrance to plaintiff's east 40 in section 6 was also granted. This eliminated construction of a road over plaintiff's land and loss of crop acreage.
Plaintiff was then recalled and testified with the granted easement and newly granted right of access the after value of his farm was $94,000 or $95,000. This evidence was not contradicted in the record.
The trial court submitted the diminished condemnation to the jury. It made an award of $22,700. The court's entry thereafter carefully established plaintiff's easement and right of access.
Plaintiff then filed a motion for allowance of attorney fees and taxation of costs against defendant commission. After taking evidence the trial court denied allowance of attorney fees and taxed the costs evenly between plaintiff and defendant. Plaintiff has appealed from the ruling on this motion. We reverse and remand.
Section 472.33, Code 1966, provides: "Costs and attorney fees. The applicant shall pay all costs of the assessment made by the commissioners. The applicant shall also pay all costs occasioned by the appeal, including reasonable attorney fees to be taxed by the court, unless on the trial thereof the same or a less amount of damages is awarded than was allowed by the tribunal from which the appeal was taken."
Plaintiff contends attorney fees and all costs should be allowed as the record fails to establish the total award was less than the amount allowed by the sheriff's jury. He argues the award for the diminished condemnation plus the value of the easement and right of access, $4000 or $5000, exceeds the sheriff's jury award.
Defendant in resistance to the motion submitted testimony of three of the six sheriff jurors that they were told by condemnation agents while at the farm Henderson would be allowed the use of the old county road and would be granted access from his buildings. This testimony was taken over plaintiff's objections. One of the two condemnation agents had been so employed for less than three months. Some misconception may have been caused by the commission's failure to shade all the condemned area on its plat.
One of the condemnation agents testified he told plaintiff he would have use of *476 the old county road. Plaintiff testified such a statement was made but not accepted or relied upon by him. He testified his first legal assurance of any use or easement first came during the trial when defendant amended its answer and granted him these rights in writing.
I. Taking of fee title is a taking of the entire title and necessarily includes all lesser estates embraced in the whole. Taking of a fee to land by condemnation includes all appurtenances. Richland Irrigation Dist. v. United States, 9 Cir., 222 F.2d 112; 30 C.J.S. Eminent Domain § 450, pages 637-638; 26 Am.Jur.2d, Eminent Domain, section 130, page 789.
In 30 C.J.S. Eminent Domain § 449, pages 618-619, the editor states: "Generally, where there is a proper exercise of the right of eminent domain, the legal entity condemning the property obtains an absolute right, title, and interest therein, and the title so conferred is good against the world. Ordinarily where unlimited use is contemplated, condemnation abrogates and extinguishes all pre-existing interests in the property."
II. Under this condemnation proceeding until the amendment during trial fee title to the described area, including the county road, was being taken. Thereunder plaintiff's right of access was being extinguished. Schrimper v. Chicago M. & St. P. Ry., 115 Iowa 35, 82 N.W. 916, 87 N.W. 731; Roberts v. Upper Verdigris W.J.Dist., 193 Kan. 151, 392 P.2d 914; Arkansas St. Highway Comm. v. Wilmans, Ark., 388 S.W.2d 916; In re State Highway Com'r, 256 Mich. 165, 239 N.W. 317; Carolina Central Gas Co. v. Hyder, 241 N.C. 639, 86 S.E.2d 458. See also 27 Am.Jur.2d, Eminent Domain, section 396; 30 C.J.S. Eminent Domain § 450.
III. An unaccepted promise, promissory statements or declaration of future intentions by a condemnor as to what will be done or not done with respect to the property condemned, or to that left untaken and to the rights of the landowner in relation thereto, cannot affect the character or extent of the condemnor's rights acquired or the amount of damages it must pay as just compensation. De Penning v. Iowa Power & Light Co., 239 Iowa 950, 955, 956, 33 N.W.2d 503, 506, 5 A.L.R.2d 716, 721, and citations; Richland Irrigation Dist. v. United States, supra; Roberts v. Upper Verdigris W.J.Dist., supra; Coos Bay Logging Co. v. Barclay, 159 Or. 272, 79 P.2d 672; Shell Pipe Line v. Woolfolk, 331 Mo. 410, 53 S.W.2d 917; Board of Education of Kanawha County v. Shafer, 147 W.Va. 15, 124 S.E.2d 334; Kentucky Water Service Co. v. Gibbs, Ky., 239 S.W.2d 62. See also 26 Am.Jur.2d, Eminent Domain, section 152; 27 Am.Jur.2d, Eminent Domain, section 272; 29A C.J.S. Eminent Domain § 155; Anno. 7 A.L.R.2d 364.
IV. In Moran v. Iowa State Highway Com., 223 Iowa 936, 941, 274 N.W. 59, 62, a condemnation case, we say: "What one holds by the grace or favor of another he holds by a tenure too uncertain to give it any value whatever. Had there been any reservation made through these proceedings by which any advantages which appellee may now have, through the favor of the highway authorities, could be claimed and enforced as a matter of right, a different situation would be presented."
Plaintiff does not challenge defendant's right to diminish its condemnation during trial. Such right is clearly recognized in De Penning v. Iowa Power & Light Co., supra, 239 Iowa 950, 33 N.W. 2d 503, 5 A.L.R.2d 716. Prior thereto, however, the promises and statements of defendant's condemnation agents meant nothing. In assessing damages it is not what the condemnor intends to do, but what it acquires the right to do that determines the quantum of damages. Carolina Central *477 Gas Co. v. Hyder, 241 N.C. 639, 86 S.E.2d 458, 460; 29A C.J.S. Eminent Domain § 155, page 658.
V. It was the duty of the sheriff's jury to assess plaintiff's damages according to the notice given plaintiff and the application filed with the sheriff. Testimony of the three sheriff's jurors regarding their consideration of the condemnation agents' statements contrary to the notice and application should have been excluded and not considered by the trial court. Klopp v. Chicago, M. & St. P. Railway Co., 142 Iowa 474, 479, 480, 119 N.W. 373, 376; Arkansas State Highway Commission v. Wilmans, Ark., 388 S.W.2d 916; Pursiful v. Commonwealth, 212 Ky. 690, 279 S.W. 1106; Roberts v. Upper Verdigris W.J.Dist., supra, 193 Kan. 151, 392 P.2d 914; Ridgewood v. Sreel Investment Corp., 28 N.J. 121, 145 A.2d 306; Shell Pipe Line v. Woolfolk, 331 Mo. 410, 53 S.W.2d 917. See also 7 A.L.R.2d at page 383.
VI. We do not agree mere comparison of the amounts of the sheriff's jury and the trial court jury's rewards determines whether attorney fees should be allowed. Plaintiff was compelled to employ counsel and litigate. His net award was larger than that allowed by the sheriff's jury. The undisputed record is that a difference of $4000 or $5000 came in the form of the easement and right of access. Under Code section 472.33 costs and attorney fees are to be paid by the commission unless the exception is shown. The record discloses the amount allowed on trial totals more than that of the sheriff's jury. We hold all costs, including reasonable fees for plaintiff's attorney, must be taxed against defendant.
This case is reversed and remanded to the trial court for taxation of costs and determination of reasonable attorney fees and an award thereof.
Reversed and remanded.
All Justices concur.


89 F.3d 850
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Nathaniel F. MURPHY, Jr., Plaintiff-Appellant,v.Kimberly BRUSUELAS, Assistant Public Defender;  BernalilloCounty Public Defender, Defendants-Appellees.
No. 95-2255.
United States Court of Appeals, Tenth Circuit.
June 20, 1996.

Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.
ORDER AND JUDGMENT*
TACHA, Circuit Judge.

1
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal.   See Fed.  R.App. P. 34(a);  10th Cir.  R. 34.1.9.   The cause is therefore ordered submitted without oral argument.

2
This pro se appeal is from two orders of the district court.   The first order of the district court dismissed plaintiff's civil rights action which the district court construed as an action brought pursuant to 42 U.S.C. § 1983 and, further, construed plaintiff's claim for injunctive relief as a writ of habeas corpus and dismissed that action directing the clerk of the court to provide plaintiff with forms for filing a petition under 28 U.S.C. § 2254.   That order was filed on June 29, 1995.   On July 21, 1995, plaintiff filed a motion which was construed as a motion for reconsideration.   The order denying that motion was entered on October 11, 1995.   The notice of appeal was filed November 8, 1995.   Because the motion to amend the original order was not served within ten days of the final order of the district court, that motion does not extend the time in which to file an appeal.   Fed. R.App. P. 4(a)(4);  Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.1991), cert. denied, 113 S.Ct. 89 (1992).   We construe the motion as a motion brought pursuant to Federal Rule of Civil Procedure 60(b), which allows us to review only the district court's denial of the motion to reconsider and not the underlying judgment.   Id. We review for an abuse of discretion.  White v. American Airlines, Inc., 915 F.2d 1414, 1425 (10th Cir.1990).

3
The district court denied the motion for reconsideration on the grounds that the district court did not err in finding that a public defender undertaking a defense does not act under color of state law for the purposes of 42 U.S.C. § 1983 and that the complaint did not state a claim because no conspiracy between the defendant and the prosecutor was supported with adequate factual allegations.   We have reviewed the record, the briefs, and the district court opinions and find that the district court did not abuse its discretion in denying the motion for reconsideration.   AFFIRMED.

4
The mandate shall issue forthwith.

*
 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.   This court generally disfavors the citation of orders and judgments;  nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.  R. 36.3


Travelsavers Enters., Inc. v Analog Analytics, Inc. (2017 NY Slip Op 03034)

Travelsavers Enters., Inc. v Analog Analytics, Inc.

2017 NY Slip Op 03034

Decided on April 19, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 19, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

MARK C. DILLON, J.P.
SANDRA L. SGROI
SYLVIA O. HINDS-RADIX
JOSEPH J. MALTESE, JJ.

2014-09295
 (Index No. 602696/13)

[*1]Travelsavers Enterprises, Inc., doing business as Travelsavers Partner Services, appellant,
vAnalog Analytics, Inc., et al., respondents, et al., defendant.

Kasowitz, Benson, Torres & Friedman LLP, New York, NY (Michael Paul Bowen, Bradley Peter Lerman, and Stephen P. Thomasch of counsel), for appellant.
Hogan Lovells US LLP, New York, NY (Marc J. Gottridge and Marisa H. Lenok of counsel), for respondents Analog Analytics, Inc., Barclays Bank Delaware, and Barclays, PLC, and Ropers Majeski Kohn Bentley P.C., New York, NY (Geoffrey W. Heineman and Jung H. Park of counsel), for respondent Analog Analytics, Inc. (one brief filed).
Nixon Peabody LLP, New York, NY (Barbara A. Lukeman, Juan Luis Garcia, and Thomas Mealiffe of counsel), for respondent Kenneth Kalb.

DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Driscoll, J.), entered July 22, 2014, as granted those branches of the motion of the defendants Analog Analytics, Inc., Barclays Bank Delaware, and Barclays, PLC, which were pursuant to CPLR 3211(a) to dismiss the second, fourth, fifth, sixth, and seventh causes of action insofar as asserted against them, and to strike the plaintiff's demands for damages in excess of damages recoverable pursuant to a damages limitation clause in the contract, and granted the motion of the defendant Kenneth Kalb to dismiss the complaint insofar as asserted against him.
ORDERED that the appeal is dismissed, without costs or disbursements.
The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the companion appeal from the judgment (see CPLR 5501[a][1]; Travelsavers Enters., Inc. v Analog Analytics, Inc., ___ AD3d ___ [Appellate Division Docket Nos. 2015-12396, 2016-02626, 2017-03414; decided herewith]).
DILLON, J.P., SGROI, HINDS-RADIX and MALTESE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court