                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                               February 20, 2013 Session

     GENE B. COCHRAN, ET AL. v. CITY OF MEMPHIS, TENNESSEE

              Direct Appeal from the Chancery Court for Shelby County
                  No. CH-11-1123-1     Walter L. Evans, Chancellor

                No. W2012-01346-COA-R3-CV - Filed March 19, 2013

The South Cordova Area was annexed in November 2001. In December 2001, Plaintiffs
timely filed a complaint challenging the South Cordova Area annexation. In 2011, however,
the complaint was dismissed “without prejudice” for failure to prosecute. Thereafter,
Plaintiffs filed a second complaint challenging annexation, but the trial court dismissed the
complaint for failure to state a claim. We affirm.

 Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and H OLLY M. K IRBY, J., joined.

Richard L. Winchester, Jr., Memphis, Tennessee, for the appellants, Gene B. Cochran, Don
S. Jamison, William L. Kegler, Roger B. Rice, Barry L. Knight and Dr. E. Sidney Birdsong

Allan J. Wade, Brandy S. Parrish, Memphis, Tennessee, for the appellee, City of Memphis
                                             OPINION

                              I.   F ACTS & P ROCEDURAL H ISTORY

       On November 20, 2001, the Memphis City Council passed Ordinance No. 4907
annexing the “South Cordova Annexation Area” (“South Cordova Area”). That same day,
the City Council also passed Ordinance No. 4908 annexing the “Southeast Industrial Corridor
Annexation Area” (“Southeast Area”).

        On December 18, 2001, alleged landowners within the South Cordova Area–Gene B.
Cochran, Don S. Jamison, William L. Kegler, Roger B. Rice, Barry L. Knight, and Dr. E.
Sidney Birdsong (collectively, “Plaintiffs”)–filed a “Complaint for Declaratory Judgment in
the Nature of a Quo Warranto Proceeding Per T.C.A. § 6-51-103, and T.C.A. § 6-58-111”
(“First Complaint”) challenging the annexation of the South Cordova Area.1 However, on
April 20, 2011, the First Complaint was dismissed “without prejudice” for lack of
prosecution. Plaintiffs moved to set aside the dismissal, but their motion was denied. No
appeal was taken from the dismissal of the First Complaint.

        On July 5, 2011, Plaintiffs filed a “Complaint in the Nature of a Quo Warranto
Proceeding Per T.C.A. § 6-51-102(b)(5), and for a Declaratory Judgment, Per T.C.A. § 6-58-
111” (“Second Complaint”) again challenging the annexation of the South Cordova Area.2
As the basis of their quo warranto action, Plaintiffs essentially claimed that annexation was
unreasonable and/or unnecessary. Additionally, Plaintiffs sought a declaratory judgment that
(1) the City Council had exceeded its authority in annexing the South Cordova Area; and (2)
the annexation was “prohibited by law” because the City was in default on a prior plan of
services for the Southeast Area at the time it annexed the South Cordova Area.

       The defendant City of Memphis (“City”) filed a Motion to Dismiss pursuant to
Tennessee Rule of Civil Procedure 12.02(6), claiming that both Plaintiffs’ quo warranto
action and their declaratory judgment action were time-barred. The City further argued that
the declaratory judgment action failed to state a claim for relief because: (1) Plaintiffs’
Second Complaint failed to allege facts to support their contention that the City exceeded its
authority in annexing the South Cordova Area; (2) a declaratory judgment action is available
only when no quo warranto proceeding was available; (3) the City could not have been in

       1
       The First Complaint named as defendants the City of Memphis, the Mayor of Memphis, and specific
Memphis City Council Members.
       2
           The Second Complaint named only the City of Memphis as a defendant.

                                                  -2-
default of a prior plan of services for the Southeast Area when it annexed the South Cordova
Area, because both areas were annexed at the same time; and (4) the South Cordova Area
property owner Plaintiffs had no right to enforce a plan of services for the Southeast Area
after its annexation.

        Plaintiffs did not respond to the City’s Motion to Dismiss,3 and, following a hearing,
the trial court granted the City’s motion finding that Plaintiffs’ Second Complaint “fails to
state a relief for which relief may be granted[.]” Plaintiffs timely appealed to this Court.

                         II.   I SSUE P RESENTED & S TANDARD OF R EVIEW

       On appeal, we are asked to determine whether the trial court erred in granting the
City’s Motion to Dismiss Plaintiffs’ Second Complaint for failure to state a claim.

        The City attached as exhibits to its Motion to Dismiss: (1) Ordinance No. 4907,
annexing the South Cordova Area; (2) Plaintiffs’ First Complaint filed December 18, 2001;
(3) the April 20, 2011 “Order Dismissing Cause for Lack of Prosecution”; (4) the June 28,
2011 “Order Denying Motion to Set Aside Order of Dismissal; and (5) Ordinance No. 4908,
annexing the Southeast Area. In Indiana State Dist. Council of Laborers v. Brukardt, No.
M2007-02271-COA-R3-CV, 2009 WL 426237, at *8-9 (Tenn. Ct. App. Feb. 19, 2009)
discretionary review denied (Tenn. Aug. 24, 2009), the middle section of this Court, in
allowing consideration of a proxy statement and a certificate of incorporation in resolving
a motion to dismiss, cited with approval the following:

        Numerous cases . . . have allowed consideration of matters incorporated by
        reference or integral to the claim, items subject to judicial notice, matters of
        public record, orders, items appearing in the record of the case, and exhibits
        attached to the complaint whose authenticity is unquestioned; these items may
        be considered . . . without converting the motion [to dismiss] into one for
        summary judgment.

(quoting Wright and Miller, Federal Practice and Procedure, Civil § 1357, p. 376 (3d ed.
2004)). We find the motion to dismiss in this case was not converted into a motion for
summary judgment.

        3
          In its “Order Granting Motion to Dismiss and Dismissing Complaint,” the trial court stated that it
had considered “Plaintiffs’ Response to the Motion to Dismiss[.]” However, no such response is included
in the record before this Court, the City’s brief states that “Plaintiffs/Appellants did not file a response to the
City’s motion to dismiss,” and Plaintiffs’ brief contains no indication that a response was, in fact, filed.

                                                       -3-
        “A Rule 12.02(6) motion to dismiss seeks only to determine whether the pleadings
state a claim upon which relief can be granted.” Edwards v. Allen, 216 S.W.3d 278, 284
(Tenn. 2007). The motion challenges the legal sufficiency of the complaint, admitting the
truth of all relevant and material averments contained therein, but asserting that such facts
do not constitute a cause of action. Id. “It is well-settled that a complaint should not be
dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of
facts in support of his or her claim that would warrant relief.” Trau-Med of Am., Inc. v.
Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002). We are required to take the relevant and
material factual allegations in the complaint as true and to liberally construe all allegations
in favor of the plaintiff. Edwards, 216 S.W.3d at 284. We are not, however, “required to
accept as true assertions that are merely legal arguments or ‘legal conclusions’ couched as
facts.” Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 427 (Tenn.
2011) (citing Riggs v. Burson, 941 S.W.2d 44, 47 (Tenn. 1997)). We review a trial court’s
conclusions of law, including its ruling on a Rule 12.02(6) motion to dismiss, de novo with
no presumption of correctness. Edwards, 216 S.W.3d at 284; see also Doe v. Catholic
Bishop for Diocese of Memphis, 306 S.W.3d 712, 717 (Tenn. Ct. App. 2008) (citing Stein v.
Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997); Farris v. Todd, No. E1999-01574-
COA-R3-CV, 2000 WL 528408, at *2 (Tenn. Ct. App. May 3, 2000)).

                                            III.   D ISCUSSION

       On appeal, Plaintiffs argue that the trial court erred in dismissing their Second
Complaint because their First Complaint was dismissed “without prejudice.” They
essentially contend that this “without prejudice” language conveyed an automatic right to “re-
instate the pending litigation[,]” notwithstanding any issues related to the Second
Complaint’s sufficiency or timeliness.4

                                A. Dismissal of Quo Warranto Action

       Prior to 1955, “the primary method in Tennessee for annexation of new territory to
the borders of a municipality was by private act of the General Assembly.” Highwoods
Props., Inc. v. City of Memphis, 297 S.W.3d 695, 703 (Tenn. 2009) (citations omitted).
However, in 1955, to facilitate a municipality’s need to “‘plan for its orderly growth and
development[,]’” id. (quoting City of Kingsport v. State ex rel. Crown Enters., Inc., 562
S.W.2d 808, 814 (Tenn. 1978)), and “to increase the power of municipalities to deal with
developments on their peripheries[,]” our legislature “establish[ed] a general law governing
the annexation of land to the borders of existing municipalities” via, among other
mechanisms, ordinance of the annexing municipality. Id. at 704 (citing Tenn. Code Ann. §

       4
           Plaintiffs provide little demarcation between their quo warranto and declaratory judgment claims.

                                                     -4-
6-51-102).

        A municipality’s decision to annex, however, does not go into effect immediately
upon passage of an ordinance. Town of Huntsville v. Scott County, 269 S.W.3d 57, 61 n.5
(Tenn. Ct. App. 2008) (citing City of Knoxville v. Knox County, No. M2006-00916-COA-R3-
CV, 2008 WL 465265, at *3 (Tenn. Ct. App. Feb. 20, 2008) perm. app. denied (Tenn. Aug.
25, 2008)). The ordinance becomes operative thirty days after final passage, as aggrieved
property owners may contest annexation during this thirty-day period. Id. (citing City of
Knoxville, 2008 WL 465265, at *3). Specifically, the 1955 Act granted “‘[a]ny aggrieved
owner of property lying within the territory5 which is the subject of an annexation ordinance’
a right to challenge the ordinance via a timely filed quo warranto action alleging that the
annexation ‘reasonably may not be deemed necessary for the welfare of the residents and
property owners of the affected territory and the municipality as a whole and so constitute[s]
an exercise of power not conferred by law.’” Id. (quoting Act of Mar. 1, 1955, § 2(b))
(footnote omitted). However, “[t]he right to challenge an annexation is [] a ‘statutory right’
that ‘in its very origin is limited.’” Id. (citing Brent v. Town of Greeneville, 309 S.W.2d 121,
123 (Tenn. 1957)); see also Southwest Tenn. Elec. Membership Corp. v. City of Jackson, 359
S.W.3d 590, 604 (Tenn. Ct. App. 2010) (“[O]ur Courts have consistently held that the
statutory right to challenge an annexation is very limited.”) (citing Highwoods, 297 S.W.3d
at 707-08).

       Our Supreme Court has stated that “‘[w]ithin the four corners of [the quo warranto]
statute lies the entire jurisdiction and authority of the Courts to review the actions of
municipalities in enacting annexation ordinances.’” Id. (quoting City of Oak Ridge v. Roane
County, 563 S.W.2d 895, 897 (Tenn. 1978)). Accordingly, “‘the courts have no power to
vacate an annexation ordinance for purely procedural defects,’ because no such authority has
been granted by statute.’” Id. (quoting City of Watauga v. City of Johnson City, 589 S.W.2d
901, 906 (Tenn. 1979)). Instead, “the general rule is that defects in an annexation ordinance
must be presented in the context of a challenge to its reasonableness or necessity by way of
a timely quo warranto challenge.” Id. (citing City of Oak Ridge, 563 S.W.2d at 898; City of
Knoxville v. State ex rel. Graves, 341 S.W.2d 718, 721 (Tenn. 1960)). A quo warranto
challenge must be made within “thirty days after the operative date of the ordinance,”
because thereafter, “the courts have no jurisdiction of such suits.” City of Oak Ridge, 563
S.W.2d at 898.

        As stated above, the City of Memphis moved to dismiss Plaintiffs’ Second Complaint,

        5
          The Act has since been extended to allow “[a]n aggrieved owner of property that borders . . .
territory that is the subject of an annexation ordinance” to bring a quo warranto action. Tenn. Code Ann.
§ 6-51-103(a)(1)(A) (emphasis added).

                                                  -5-
filed in July 2011, claiming, among other things, that their quo warranto action was untimely
because it was filed approximately ten years–rather than thirty days–after the November 2001
annexation of the South Cordova Area which it sought to challenge. The trial court
dismissed the Second Complaint for failure to state a claim.

        On appeal, Plaintiffs suggest that the timeliness of their Second Complaint could not
properly be considered via a motion to dismiss. However, our Supreme Court has expressly
stated that “[a] Tenn. R. Civ. P. 12.02(6) motion is an appropriate way to seek to invoke the
statute of limitations as grounds for dismissing a complaint.” Redwing v. Catholic Bishop
Diocese of Memphis, 363 S.W.3d 436, 456 n.11, (Tenn. 2012) (citations omitted); see also
Givens v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383, 404 (Tenn. 2002) (“A
‘complaint is subject to dismissal under [R]ule 12.02(6) for failure to state a claim if an
affirmative defense clearly and affirmatively appears on the face of the complaint.’”)
(quoting Anthony v. Tidwell, 560 S.W.2d 908, 909 (Tenn. 1977)).

        Alternatively, Plaintiffs contend that by dismissing their First Complaint “without
prejudice,” the trial court intended to “specifically authorize” the “re-filing” of their quo
warranto action outside of the 30-day limitations period. It appears that this argument was
not raised in the trial court,6 and in any event, this contention finds no support in Tennessee
law. As noted by the City, “A court derives subject matter jurisdiction from the Tennessee
Constitution or legislative act.” Word v. Metro Air Servs., Inc., 377 S.W.3d 671 (Tenn.
2012) (citing Meighan v. U.S. Spring Commc’ns Co., 924 S.W.2d 632, 639 (Tenn. 1996)).
We have found no Constitutional or legislative authority, nor any applicable judicially-
recognized exception,7 permitting a court to exercise jurisdiction over a quo warranto action
filed outside of the 30-day limitations period. Instead, we find the existence of an affirmative
defense–the 30-day statute of limitations for filing a quo warranto action–“clearly and
affirmatively appears” on the face of the Second Complaint. See Givens, 75 S.W.3d at 404
(citing Anthony, 560 S.W.2d at 909). Accordingly, we conclude that the Second Complaint
fails to sufficiently raise a quo warranto action claim, and we affirm the trial court’s

        6
          Plaintiffs’ Second Complaint fails to make any assertion that it was timely filed despite the passage
of approximately ten years between the annexation challenged and its filing. Additionally, Plaintiffs did not
file a transcript or a statement of the evidence.
        7
         At oral argument before this Court, Plaintiffs seemed to indicate that they were not relying upon
the Savings Statute, Tenn. Code Ann. § 28-1-105. In any event, the Savings Statute does not apply to section
6-51-103 (formerly § 6-310) annexation challenges dismissed without prejudice. See City of Oak Ridge v.
Roane County, 563 S.W.2d 895, 898 (Tenn. 1978) (citing Brent v. Town of Greenville, 203 Tenn. 60, 309
S.W.2d 121 (1957) (finding that the Savings Statute did not save a voluntarily non-suited annexation
ordinance challenge from operation of the 30-day challenge period set forth in Tennessee Code Annotated
section 6-51-102 (formerly § 6-309)).

                                                     -6-
dismissal of such.

                         B. Dismissal of Declaratory Judgment Action

       As stated above, Plaintiffs’ Second Complaint sought a declaratory judgment that (1)
the City Council had exceeded its authority in annexing the South Cordova Area; and (2) the
annexation was “prohibited by law” because the City was in default on a prior plan of
services for the Southeast Area at the time it annexed the South Cordova Area.

       On appeal, the City argues that Plaintiffs’ declaratory judgment action was properly
dismissed because (1) Plaintiffs’ Second Complaint alleged no facts to support its claim that
the City exceeded the authority granted to it; (2) a declaratory judgment action is available
only when no quo warranto proceeding was available; (3) it is factually and legally
impossible for the City to have been in default of a prior plan of services for the Southeast
Area at the time it annexed the South Cordova Area because both areas were annexed on the
same day; and (4) Plaintiffs–as South Cordova Area property owners–have no right to
enforce a plan of services for the Southeast Area.

       Challenges related to the reasonableness or necessity of an annexation must be
brought via a timely quo warranto action; however, where an annexation ordinance is alleged
to be void or to exceed the authority delegated by the legislature, a declaratory judgment
action may be permissible. State ex rel. Earhart v. City of Bristol, 970 S.W.2d 948, 954
(Tenn. 1998); Blount v. City of Memphis, No. W2006-01191-COA-R3-CV, 2007 WL
1094155, at *4 (Tenn. Ct. App. Apr. 13, 2007). To challenge an annexation ordinance via
a complaint for declaratory judgment, however, two requirements must be met: (1) the
challenge must relate to an ultra vires act; and (2) a quo warranto proceeding must not be
available. Highwoods Props., Inc., 297 S.W.3d at 708-09 (“‘Subject to some exceptions,
a declaratory judgment actions should not be considered where special statutory proceedings
provide an adequate remedy.’”) (quoting Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827,
838 (Tenn. 2008)).

                    1. Plaintiffs’ Claim that the City Exceeded its Authority

        In this case, Plaintiffs cannot claim that they were unable to bring a quo warranto to
allege that the City Council had exceeded its authority in annexing the South Cordova Area
because this claim was expressly raised in their First Complaint filed on December 18, 2001.8
That the action was ultimately dismissed due to their failure to prosecute is of no

        8
        As stated above, we find the trial court could properly consider the First Complaint in ruling on the
City’s Motion to Dismiss.

                                                    -7-
consequence. Because Plaintiffs do not meet the requirements for bringing a declaratory
judgment action with regard to this claim, we find that the claim was properly dismissed. See
McMillan v. Town of Signal Mtn. Planning Comm’n, No. E2009-01254-COA-R3-CV,
2009 WL 4041660, at *3-4 (Tenn. Ct. App. Nov. 23, 2009) (granting the defendants’ motion
to dismiss, finding that because the plaintiffs had filed a quo warranto action, they could not
also maintain a declaratory judgment action).

             2. Plaintiffs’ Claim that Annexation was Prohibited by Law

        Tennessee Code Annotated section 6-51-102(b)(5) provides that “[a] municipality may
not annex any other territory if the municipality is in default on any prior plan of services.”
(emphasis added). On appeal, Plaintiffs claim that their declaratory judgment action was a
proper vehicle for raising their claim that the City was in default of its plan of services for
the Southeast Area at the time it annexed the South Cordova Area, and therefore, that the
annexation of the South Cordova Area was “prohibited by law[.]” Plaintiffs point out that
this claim was not raised in the First Complaint, and they insist that was so because the claim
had not yet “ripened[.]”

         At the outset, the City argues that Plaintiffs’ Second Complaint fails to allege any
facts to support its allegation that the City defaulted upon its obligations pursuant to the
Southeast Area plan of services. Alternatively, it maintains that any failure to comply with
its plan of services for the Southeast Area cannot operate to invalidate the annexation of the
South Cordova Area. First, it points out that both areas were annexed on the same day, and
therefore, it argues that no default of the Southeast Area plan of services could have existed
at the time the South Cordova Area was annexed. Second, it claims that Plaintiffs, who own
property in the South Cordova Area, lack standing to enforce a plan of services for the
Southeast Area. Third, it contends that the exclusive remedy for failure to comply with a
plan of services is mandamus–not annexation invalidation.

       “To be sufficient and survive a motion to dismiss, a complaint must not be entirely
devoid of factual allegations.” Webb, 346 S.W.3d at 427. “Tennessee courts have long
interpreted Tennessee Rule of Civil Procedure 8.01 to require a plaintiff to state ‘‘the facts
upon which a claim for relief is founded.’’” Id. (quoting Smith v. Lincoln Brass Works, Inc.,
712 S.W.2d 470, 471 (Tenn. 1986) (quoting W & O Contr. Co. v. City of Smithville, 557
S.W.2d 920, 922 (Tenn. 1977))). A complaint is not required to “‘contain detailed
allegations of all the facts giving rise to the claim,’ but it must ‘contain sufficient factual
allegations to articulate a claim for relief.’” Id. (quoting Abshure v. Methodist Healthcare-
Memphis Hosps., 325 S.W.3d 98, 103-04 (Tenn. 2010)). “‘The facts pleaded, and the
inferences reasonably drawn from these facts, must raise the pleader’s right to relief beyond
the speculative level.’” Id. (quoting Abshure, 325 S.W.3d at 104). This Court is simply not

                                              -8-
required to “accept as true assertions that are merely legal arguments or ‘legal conclusions’
couched as facts.” Id. (citing Riggs, 941 S.W.2d at 47-48).

         Our review of Plaintiffs’ Second Complaint reveals no factual allegations to support
its conclusory legal allegation that the City “is in default in its plan of services adopted for
the Southeast Annexation and, accordingly, is prohibited by law from proceeding with the
annexation of the South Cordova Area.” For example, the Second Complaint contains no
allegations concerning the nature of the alleged default, that the default existed at the time
the South Cordova Area was annexed, that residents of the Southeast Area had filed suit to
compel the City to perform the plan of services, or that a court had determined that the City
had failed to comply with the plan of services without cause. This “bare bones” allegation
wholly fails to raise Plaintiffs’ right to relief beyond speculation, and therefore, we find that
it is insufficient to survive a motion to dismiss for failure to state a claim.

        In sum, we affirm the trial court’s dismissal of Plaintiff’s Second Complaint–both its
quo warranto and declaratory judgment claims–in toto for failure to state a claim upon which
relief can be granted.

                                     IV.    C ONCLUSION

        For the aforementioned reasons, we affirm the decision of the chancery court. Costs
of this appeal are taxed to Appellants, Gene B. Cochran, Don S. Jamison, William L. Kegler,
Roger B. Rice, Barry L. Knight, and Dr. E. Sidney Birdsong, and their surety, for which
execution may issue if necessary.

                                                     _________________________________
                                                     ALAN E. HIGHERS, P.J., W.S.

                                               -9-


863 F.2d 885
Allis-Challmers Corp.v.Northbrook Excess, Surplus Insurance Company
NOS. 87-1861, 87-1862
United States Court of Appeals,Seventh Circuit.
NOV 28, 1988

1
Appeal From:  N.D.Ill.

2
BRIEFING ORDERED.


277 P.3d 669 (2012)
STATE
v.
SMITH.
No. 86951-1.
Supreme Court of Washington, Department II.
April 25, 2012.
Disposition of Petition for Review Granted.


61 F.3d 912
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.Dudley Earl THOMAS, Plaintiff-Appellee,v.LAS VEGAS METROPOLITAN POLICE DEPARTMENT, Officer D.McArthur, P#3615; Sgt. R. Jett, P#1632, Defendant-Appellee.
No. 94-16747.
United States Court of Appeals, Ninth Circuit.
Submitted July 17, 1995.*Decided July 20, 1995.

Before:  FLETCHER, KOZINSKI, and THOMPSON, Circuit Judges.

1
MEMORANDUM**

2
Las Vegas Metropolitan Police Department Officers D. McArthur and R. Jett appeal the district court's order denying, on reconsideration, their motion for summary judgment based on qualified immunity in Dudley Earl Thomas' action pursuant to 42 U.S.C. Sec. 1983 alleging malicious prosecution.  Because the district court denied the motion based on the existence of a genuine issue of material fact, we lack jurisdiction.  See Johnson v. Jones, 132 L. Ed. 2d 238 (1995).

3
DISMISSED.

*
 The panel unanimously finds this case suitable for decision without oral argument.  Fed. R. App.  P. 34(a); 9th Cir.  R. 34-4

**
 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


89 F.3d 837
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Juan WINSTON, Defendant-Appellant.
No. 95-5667.
United States Court of Appeals, Sixth Circuit.
June 6, 1996.

Before:  NELSON and SILER, Circuit Judges;  WISEMAN, District Judge.*
PER CURIAM.

1
Defendant, Juan Winston, appeals his sentence pursuant to his conviction for conspiracy to possess cocaine base with intent to distribute, in violation of 21 U.S.C. § 846, and aiding and abetting the possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.   Winston contends that the failure of the original presiding judge to conduct the resentencing hearing prejudiced his interests and that his sentence for trafficking in crack cocaine was inconsistent with the applicable statute and the Commission's Congressional mandate.   For the reasons stated herein, we affirm Winston's sentence.

I.

2
Winston appealed his conviction and sentence and this court affirmed his conviction, but found that the sentencing court had improperly sentenced Winston to life as a career offender and the case was remanded for resentencing.  United States v. Winston, 37 F.3d 235, 238-40 (6th Cir.1994).

3
The original trial and sentencing was presided over by the Honorable Gordon J. Quist, United States District Judge for the Western District of Michigan, sitting by designation.   Upon remand, Winston requested that Judge Quist also preside over the resentencing.   This request was denied.   Instead, Chief District Judge Julia Gibbons presided.   Winston claims that the failure of Judge Quist to conduct the resentencing hearing prejudiced his interests.   This claim is reviewed for an abuse of discretion.  United States v. Bourgeois, 950 F.2d 980, 987-88 (5th Cir.1992).

4
Federal Rule of Criminal Procedure 25(b) states that "[i]f by reason of absence, death, sickness or other disability the judge before whom the defendant has been tried is unable to perform the duties to be performed by the court after a verdict or finding of guilt, any other judge regularly sitting in or assigned to the court may perform those duties."   In United States v. McCallie, 554 F.2d 770 (6th Cir.1977), a district judge from Columbus, Ohio sat by designation in Chattanooga, Tennessee for a sick district judge and conducted a trial.   The sick judge recovered and sentenced McCallie after the presiding judge returned to Columbus.   McCallie argued on appeal that his interests were prejudiced.   This court rejected McCallie's argument and found no prejudice.

5
Our decision in McCallie controls as there is nothing sufficiently different nor unique which distinguishes this case.   Further, as Winston received the minimum sentence of 360 months under the guidelines, it is difficult to see how he would have been better served by a sentence rendered by Judge Quist.   Thus, there was no prejudice.

II.

6
The United States Sentencing Commission issued a report to Congress discussing the different penalties for various forms of cocaine.1  In this report, the Commission concluded that it could not recommend the 100-to-1 ratio.2  Winston's principal argument is that the Commission's Report constitutes an admission that the guidelines are in error as to the ratio.   While this is a novel argument, it is without merit.

7
On May 1, 1995, the Sentencing Commission submitted amendments to the guidelines.   These proposed amendments would become part of the overall guidelines, and thus would be binding, unless Congress affirmatively acted to modify or disapprove of the Commission's changes.   See 28 U.S.C. § 994(p).   On October 10, 1995, however, Congress enacted legislation "to disapprove of amendments to the Federal Sentencing Guidelines relating to lowering crack sentences."   Pub.L. No. 104-38, 109 Stat. 334.   Congress specifically chose to set higher penalties for crack related offenses:  "the sentence imposed for trafficking in a quantity of crack cocaine should generally exceed the sentence imposed for trafficking in a like quantity of powder cocaine."   Id.  Consequently, in light of this legislation, Winston's argument fails.3

8
As we have found that Congress specifically rejected the Commission's suggestion, we need not address Winston's remaining claims.

9
AFFIRMED.

*
 The Honorable Thomas A. Wiseman, Jr., United States District Judge for the Middle District of Tennessee, sitting by designation

1
 United States Sentencing Commission, Special Report to the Congress:  Cocaine and Federal Sentencing (1995)

2
 Under the guidelines, one gram of crack cocaine is equal to one hundred grams of powder cocaine for sentencing purposes

3
 This court has rejected several constitutional challenges to the ratio.  See United States v. Reece, 994 F.2d 277 (6th Cir.1993) (per curiam);  United States v. Tinker, 985 F.2d 241 (6th Cir.1992) (per curiam), cert. denied, 507 U.S. 1040 (1993);  United States v. Williams, 962 F.2d 1218 (6th Cir.), cert. denied, 506 U.S. 892 (1992);  United States v. Avant, 907 F.2d 623 (6th Cir.1990)


541 F.Supp. 755 (1982)
UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Plaintiff,
v.
AMERICAN MOTORISTS INSURANCE COMPANY, Defendant.
No. WC 80-155-WK-P.
United States District Court, N. D. Mississippi, W. D.
June 24, 1982.
*756 L. F. Sams, Jr., Tupelo, Miss., for plaintiff.
Carey E. Bufkin, Jackson, Miss., for defendant.

MEMORANDUM OPINION
KEADY, Chief Judge.
In this Mississippi-based diversity action, Universal Underwriters Insurance Company (Universal), general liability insurer of the Cliff Colbert Chevrolet-Oldsmobile dealership and its partners (Cliff Colbert), seeks a declaratory judgment that defendant American Motorists Insurance Company (American), which issued a family automobile liability policy to Robert S. Salveson, has primary coverage for losses arising from an automobile accident in which Salveson's vehicle was involved. American counterclaims asserting that Universal has *757 primary coverage and owes it sums expended for settlement with claimants as well as for attorney fees, court costs and other litigation expenses. For reasons that follow, we deny both Universal's claim and American's counterclaim and dismiss the entire action with prejudice.

I.
The facts are practically undisputed. Prior to September 27, 1978, Salveson, owner of a new Oldsmobile purchased from Cliff Colbert, arranged for Cliff Colbert to pick up his automobile at his residence at Greenwood, Mississippi, for servicing and minor repair at the agency garage in Grenada, about 30 miles away. Salveson understood that someone would be sent by Cliff Colbert to pick up and return the vehicle to his residence. At Cliff Colbert's request, Martine Poe on September 27 proceeded to Salveson's residence, where he identified himself to Mrs. Salveson as a representative of Cliff Colbert, and she consented for him to take the car to Grenada pursuant to her husband's direction. On his return, Poe collided with a vehicle operated by Margaret Grandberry, who was seriously injured, and whose sister, Mary Thomas, a passenger, was killed. When the accident occurred, Poe had not deviated from Cliff Colbert's instruction, and he was returning directly to the automobile agency in Grenada. Both vehicles were demolished. The accident was the result of Poe's negligence in operating Salveson's automobile.
On October 15, 1979, two actions were filed in state court by Mrs. Grandberry against Cliff Colbert, Poe and Salveson. Mrs. Grandberry's suit for personal injuries demanded $500,000 actual damages and $250,000 punitive damages; and her suit as sole heir-at-law of Mary Thomas demanded $250,000 actual damages and $150,000 punitive damages. American's policy provided bodily injury liability limits of $100,000 for each person and $300,000 for each occurrence; Universal's policy had limits of $100,000 for each person and $500,000 for each occurrence, plus substantial umbrella coverage. After the state court suits were instituted, each insurer maintained that the other should defend the cases. After being unable to agree, American employed different attorneys to represent the separate interests of Salveson, Poe and Cliff Colbert. Universal retained attorneys to monitor the state court litigation but not appear as counsel of record. After the federal declaratory action was filed on November 5, 1980, a compromise agreement of the damage suits was reached in April 1981 with Mrs. Grandberry, whereby she was paid $130,000 in full settlement of all claims against all named defendants, Universal, American and also Southern Farm Bureau Casualty Insurance Company, Poe's personal automobile liability carrier. The three insurers contributed to the settlement as follows: $103,500 by Universal, $19,500 by American and $7,000 by Southern Farm, pursuant to an agreement between Universal and American that this would not prejudice or affect their rights in the federal declaratory action.[1] In addition, American expended $21,417.77 for attorney fees and $1,113.23 for court costs, court reporter charges and investigative expense in defense of the state court actions.[2]
American's automobile liability policy obligated it to pay on behalf of the insured all sums for which the insured might be legally liable, within policy limits, because of personal injuries or death arising out of the ownership, maintenance and use of the insured automobile and also to "defend any suit alleging such bodily injury or property damages and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent, ..." The policy defined the insured as follows:
(a) With respect to the owned automobile,

*758 (1) the named insured and any resident of the same household,
(2) any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, and
(3) any other person or organization but only with respect to his or its liability because of acts or omissions of an insured under (a)(1) or (2) above.
American's policy also defined "automobile business" as "the business or occupation of selling, repairing, servicing, storing or parking automobiles," and contained certain exclusions, the pertinent one excluding coverage:
(g) to an owned automobile while used by any person while such person is employed or otherwise engaged in the automobile business but this exclusion does not apply to the named insured, a resident of the same household as the named insured, a partnership in which the named insured or such resident is a partner, or any partner, agent or employee of the named insured, such resident or partnership.
Finally, American's policy contained the following recital:
Financial Responsibility Laws
When this policy is certified as proof of financial responsibility for the future under the provisions of any motor vehicle financial responsibility law, such insurance as is afforded by this policy for bodily injury liability or for property damage liability shall comply with the provisions of such law to the extent of the coverage and limits of liability required by such law, ...
Initially, the court finds as a fact that Poe worked for Cliff Colbert under an agreement to transport vehicles for the automobile agency in return for being reimbursed travel expenses, food and occasional over-night accommodations. Poe had for several years been used as an automobile deliveryman for Cliff Colbert and was subject to call to perform this specific service for the agency. Poe, who is a disabled veteran, was compensated for his services by obtaining every year without cost a new automobile by trading in his old car. When performing his duties he was under the exclusive direction and control of Cliff Colbert. On the occasion of this accident, Cliff Colbert had specifically instructed Poe to proceed to Greenwood, obtain the Salveson automobile and return it to the agency at Grenada. The relationship between Cliff Colbert and Poe was one of principal and agent, and when the accident occurred, Poe, as its agent and employee, was acting in furthering the automobile business of his employer. Poe was not Salveson's agent, nor was he performing services on behalf of Salveson.
The court further determines as a fact that on the day of the accident Poe obtained possession of the Oldsmobile with the express consent and permission of Salveson for the purpose of driving the automobile to the Cliff Colbert agency, and when the collision occurred, Poe was operating the automobile within the scope of Salveson's permission.
Universal's general liability policy provided coverage for bodily injury and death on behalf of any insured, which is defined in Section IV as meaning
(a) any partner or paid employee ... of the named insured or such partner or paid employee ... while using an automobile covered by this coverage part or when legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission, and
(b) any person or organization legally responsible for the use thereof while such automobile is physically operated by the named insured or any such partner or paid employee ... provided the actual use of the automobile is by the named insured or with his permission.

II.

(a) WHO HAS PRIMARY COVERAGE?
Universal contends that Poe, in operating the Salveson automobile with the owner's *759 permission, was an insured under the omnibus clause, the terms of which are defined by Mississippi statute, any policy provision in conflict with the statute is unenforceable, and hence the exclusion sought to be made in (g), often referred to as the automobile garage exclusion, is a nullity. Therefore, says Universal, it is entitled to recover from American as the primary insurer $103,500 which it paid to effect settlement.[3] This position is vigorously contested by American, which asserts that its policy provisions do not conflict with Mississippi's Financial Responsibility Act, that Section (g) is a valid and enforceable exclusion applicable to the facts determined from the evidence, and relies upon Ramsay v. Price, 249 Miss. 192, 161 So.2d 778 (1964) as controlling. Alternately, American urges that if the state's Financial Responsibility Act does define the omnibus insured clause in such manner as to nullify (g) as an exclusion, nevertheless to the extent that its policy is written in excess of the $10,000/$20,000 minimum, the policy provisions are unaffected by statute.
The key issue becomes the interpretation and effect of the pertinent provisions of the Mississippi Motor Vehicle Safety Responsibility Law, Miss.Code Ann. § 63-15-1, et seq. (1972), a statutory scheme which requires the operator of a motor vehicle following an accident, to furnish satisfactory evidence of financial responsibility. This can be done by presenting evidence of an automobile liability insurance policy with limits of not less than $10,000 for bodily injury or death to any one person and $20,000 for bodily injury or death to two or more persons in one accident, § 63-15-23 (1981 Supp.), or else the motor vehicle operator's license and owner's vehicle registration may be suspended. Proof of financial responsibility is satisfied by certificate of the insurance company that there is in effect the requisite motor vehicle liability policy for the benefit of the motor vehicle operator and owner. § 63-15-39.
Section 63-15-43 (1981 Supp.) provides an explicit definition of a "motor vehicle liability policy," as used throughout the Act. Subsection (1) provides:
(1) A "motor vehicle liability policy" as said term is used in this chapter shall mean an owner's or an operator's policy of liability insurance, certified as provided in section 63-15-39 or section 63-15-41, as proof of financial responsibility, and issued ... by an insurance company duly authorized to write motor vehicle liability insurance in this state, to or for the benefit of the person named therein as insured. (Emphasis added).
A literal reading of Subsection (1) might suggest that the requirements of § 63-15-43 apply only to liability insurance policies purchased after an owner or operator has had an accident and certified as proof of financial responsibility as provided by §§ 63-15-39 and 63-15-41. See Hague v. Liberty Mutual Ins. Co., 571 F.2d 262, 265 (5 Cir. 1978). Under this interpretation, policies issued and in effect prior to the accident would not be subject to the requirements of § 63-15-43 since owners and operators with policies in effect at the time of an accident are excused from providing certified proof of financial responsibility. § 63-15-11(4) (1981 Supp.). The Mississippi Supreme Court, however, has not so interpreted § 63-15-43(1). In Vaughn v. State Farm Mut. Auto. Ins. Co., 359 So.2d 339 (Miss.1978), a case decided within two months of Hague, the state Supreme Court continued to apply the statute to any liability insurance policy, whether obtained prior to the accident or subsequent thereto, in order to certify proof of financial responsibility. Vaughn dealt with an insurance policy obtained prior to an accident. 395 So.2d at 340. Since the policy was obtained before the accident, the owner was exempt from the requirement of § 63-15-11(2) that he provide proof of financial responsibility or risk suspension of his license and vehicle *760 registration. The Court assumed, without discussion of proof of responsibility, that § 63-15-43 applied to all automobile liability insurance policies, making no distinction between policies procured prior to the accident and policies obtained subsequently as proof of financial responsibility. See also, State Farm Auto. Ins. Co. v. Moore, 289 So.2d 909 (Miss.1976) (application of § 63-15-43 to policy obtained prior to accident; United States Fidelity & Guaranty Co. v. Stafford, 253 So.2d 388 (Miss.1971) (same). As alluring as the Fifth Circuit's interpretation of this section may be, this court is Erie -bound to follow the Mississippi Supreme Court in the interpretation of this state's statute. We, therefore, reject American's argument that the policy which it issued to Salveson before the September 27, 1978 accident is not governed by § 63-15-43.
Section 63-15-43 also sets forth the mandatory provisions which must be contained in such a "motor vehicle liability policy." Subsection 2(b) provides:
(2) Such owner's policy of liability insurance:
(b) shall pay on behalf of the insured named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, all sums which the insured shall become legally obligated to pay as damages arising out of the ownership, maintenance or use of such motor vehicle or motor vehicles within the United States of America or the Dominion of Canada, subject to limits exclusive of interest and costs, with respect to each such motor vehicle, as follows: ten thousand dollars ($10,000.00) because of bodily injury to or death of one (1) person in any one (1) accident and, subject to said limit for one (1) person, twenty thousand dollars ($20,000.00) because of bodily injury to or death of two (2) or more persons in any one (1) accident, and five thousand dollars ($5,000.00) because of injury to or destruction of property of others in any one (1) accident.
Subsection 7, however, provides:
(7) Any policy which grants the coverage required for a motor vehicle liability policy may also grant any lawful coverage in excess of or in addition to the coverage specified for a motor vehicle liability policy, and such excess or additional coverage shall not be subject to the provisions of this chapter. With respect to a policy which grants such excess or additional coverage, the term "motor vehicle liability policy" shall apply only to that part of the coverage which is required by this section.
Mississippi jurisprudence requires any difference between the provisions of an automobile liability policy and the statutory requirements be resolved in accordance with the statute, the terms of which are incorporated in and become a part of the policy. United States Fidelity and Guaranty Co. v. Stafford, 253 So.2d 388 (Miss.1971). State Farm Mutual Automobile Ins. Co. v. Moore, 289 So.2d 909, 911 (Miss.1974), specifically applied this rule to enforce the exact language of the statutory omnibus clause against an insurer whose policy differed in exactly who was covered. The Fifth Circuit, in Missouri General Ins. Co. v. Youngblood, 515 F.2d 1254, 1257 (5 Cir. 1975), recognized the state policy emanating from the Safety Responsibility Act (as well as the Uninsured Motorist Coverage Act, not applicable here) to invalidate an insurer's attempt to limit liability through policy provisions in conflict with statutory law. Though Youngblood dealt with an impermissible offset provision designed to reduce coverage, and was not concerned with the import or parameter of the omnibus clause, as here, the court stressed the anomaly of one owning and paying for a policy of requisite limits, yet which failed to satisfy the Law's requirement of proof of financial responsibility because of incompatible policy provisions.
American points out that the Mississippi courts have never ruled that exclusion (g) is unenforceable as a prohibited limitation *761 upon the statutorily defined omnibus clause in 2(b), and contends that Poe, though using and operating Salveson's vehicle with the owner's permission, is not an insured because he was a person then employed or otherwise engaged in the automobile business. We agree there is no exact Mississippi precedent, making this a case of first impression.
We believe, however, that the rationale of Stafford, Moore and Vaughn, based upon public policy considerations of assuring insurance coverage to the public by strict adherence to the statutory definition of an omnibus insured, requires us to hold otherwise, at least as to the statutorily required minimum policy limits. If 2(b) does not expressly prohibit (g) as an exclusion, neither does it explicitly authorize the exclusion of an operator using and operating the insured's vehicle with the owner's permission. Hence, any ambiguity in the statute must be resolved against the insurer, especially in construing a remedial statute specifically designed to afford insurance protection to the public. Other courts construing a statutory omnibus clause have unhesitatingly held that policy provisions purporting to exclude certain classes of users from coverage are contrary to public policy, as embodied in statute, and are void, the only permissible exclusions from omnibus coverage being those expressly stated in the statute. Unsatisfied Claim and Judgment Fund Board v. Clifton, 117 N.J.Sup. 5, 283 A.2d 350; Metz v. Universal Underwriters Ins. Co., 10 Cal.3d 45, 109 Cal.Rptr. 698, 513 P.2d 922; National Union Fire Ins. Co. v. Truck Ins. Exchange, 107 Ariz. 291, 486 P.2d 773. See 7 Am.Jur.2d, Automobile Insurance, § 248, p. 819. Blashfield, Automobile Law and Practice § 315.16; Couch on Insurance 2d § 45:316.
American's reliance upon Mississippi cases decided prior to Stafford, Moore and Vaughn which held enforceable exclusionary clauses to deny coverage to permissive drivers is misplaced, as those cases are readily distinguishable. In Ellis v. Southern Farm Bureau Casualty Ins. Co., 233 Miss. 840, 103 So.2d 357 (1958); Benton v. Canal Ins. Co., 241 Miss. 493, 130 So.2d 840 (1961), and United States Fidelity and Guaranty Co. v. Mathis, 236 So.2d 730 (Miss.1970), the state supreme court considered only the effect of clear and unambiguous policy exclusions without reference to the terms of the statutory omnibus clause. In our view, the later holdings in Stafford, Moore and Vaughn require a different result as to a motor vehicle liability policy to the extent that its terms are governed by § 63-15-43.
Although exclusion (g) of American's policy is rendered ineffective as to the statutory $10,000/$20,000 limits, this does not affect the enforceability of the exclusion of Poe from American's excess coverage ($90,000/$280,000). Subsection 7 expressly exempts such excess or additional coverage from the provisions of the state's Financial Responsibility Act. It is manifestly clear that the legislature intended to leave an insurer free to make such reasonable contractual provisions as it might wish in writing an automobile liability policy for more than the statutory limits. "Above these limits, the amount of automobile liability insurance carried by the owner of a motor vehicle becomes a matter of personal choice, limited by his ability to obtain the insurance and pay for it." Travelers Indemnity Co. v. Chappell, 246 So.2d 498, 509 (Miss.1971). Universal cites no authority that, apart from statute, the garage exclusion is void as a matter of public policy, and we deem it to be a reasonable and proper limitation upon coverage. An insurer has a legitimate concern in protecting itself from greater hazards involved in the conduct of an automobile business and it should have the right to insert the automobile business or garage exclusion, as set forth in (g) of American's policy, to exclude coverage in the issuance of a family automobile policy not intended or designed for increased business risk of that character. The exclusion being clear and unambiguous, we hold that American's policy afforded no coverage to Poe or to Cliff Colbert for the excess limits.
Applying the foregoing principles, American, by contributing $19,500 to the Grandberry settlement and costs of the state court litigation, satisfied its obligation as *762 primary carrier,[4] and for which Universal is not liable. However, the funds paid in settlement by Universal, as excess carrier, are unrecoverable from American.

(b) WHO HAD THE DUTY TO DEFEND?
American counterclaims against Universal for attorney's fees incurred in defending the state court litigation. See n.2. We find this claim to be without merit. As previously stated, American's policy obligated it to defend any suit against the insured, even if the suit's allegations were groundless, false or fraudulent. The declarations in state court charged Salveson, the named insured, with negligence in entrusting his car to Poe, alleged to be an incompetent driver, that Poe negligently operated the insured vehicle, and that Cliff Colbert, as employer, was also liable for Poe's negligence. Mississippi follows the general rule that "the obligation of a liability insurance company under a policy provision requiring it to defend an action brought against the insured by a third party is to be determined by the allegations of the complaint." Southern Farm Bureau Ins. Co. v. Logan, 238 Miss. 580, 119 So.2d 268, 271 (1960). Thus, the insurer's ultimate liability is not the criterion for determining whether the insurer is obligated to defend; and if factual allegations made by the tort plaintiff bring an action within the coverage of the policy, irrespective of what the actual facts may later prove to be, the insurer is contractually bound to defend the insured. Preferred Risk Mutual Ins. Co. v. Poole, 411 F.Supp. 429 (N.D.Miss.1976). Since Salveson was a defendant in the state court litigation and charged with personal and vicarious negligence and liability, American unmistakably owed him a defense.[5] Also, Poe, an insured under the omnibus clause to the extent of the statutory limits, was owed a defense by American. Moreover, since the state court suits charged liability against Cliff Colbert, Poe's employer, American's policy, by so broadly defining the insured in (a)(3), noted above, extended coverage to that organization, and had a duty to defend it, because of its vicarious liability for the acts of the omnibus insured. American contends that since the declarations on their face also alleged liability as to Cliff Colbert and Poe, its employee, and that they were engaged in using the automobile for purposes of the automobile business at the time of the collision, Universal had an equal, if not greater, duty to defend its own insureds and wrongfully refused to do so. We agree that Universal had a duty to defend Cliff Colbert and Poe, but not Salveson. To this extent both insurers had a common obligation. Being unsuccessful in getting Universal to voluntarily accept the defense of Cliff Colbert, American proceeded to defend all defendants in state court, manifestly out of a concern for its own duty. Having acted voluntarily in this regard, American may not now invoke judicial process to compel reimbursement from Universal of costs incurred in what it perceived its own policy required it to do.
Let an order issue accordingly.
NOTES
[1]  Southern Farm's payment on behalf of Poe was made unconditionally and that company is not in the case.
[2]  Of this sum $10,290.71 was paid to Louis G. Baine to defend Salveson, $5,495.43 paid to Upshaw and Ladner to defend Poe, and $5,631.63 paid to Sumner, Hickman and Rayburn to defend Cliff Colbert.
[3]  The release which Mrs. Grandberry executed was for $130,000 for all claims without allocating any amount paid to settle the death claim of Mary Thomas and for the personal injury claims of Mrs. Grandberry. For reasons which later appear, this failure to allocate is of no legal significance in this case.
[4]  Counsel agree it is reasonable for the court to apportion $10,000 of American's contribution to the death claim of Mary Thomas and $9,500 to Mrs. Grandberry's personal injuries. The remaining $500 was more than absorbed by American's payment of court costs and court reporter's charges in state court.
[5]  This would account for nearly one-half of the attorney's fees paid to Mr. Baine to represent Salveson.


535 P.2d 306 (1975)
Shelby N. FLOYD, Appellant,
v.
The STATE of Oklahoma et al., Appellees.
No. PC-75-182.
Court of Criminal Appeals of Oklahoma.
April 30, 1975.

ORDER GRANTING RELIEF WITH INSTRUCTIONS
On January 24, 1972, appellant, Shelby N. Floyd, hereinafter referred to as defendant, upon a plea of guilty was convicted for the offense of Uttering and Passing a Bogus Check, After Former Conviction of a Felony, Case No. CRF-72-13, in the District Court, Garfield County. He was thereupon sentenced to serve a term of ten (10) years in the state penitentiary. Subsequently, defendant filed an application in the District Court, Garfield County, for post conviction relief attacking the validity of that plea of guilty for certain constitutional infirmities. Thereafter, on June 5, 1974, the District Court entered an order of summary judgment, denying the application for post conviction relief, and from that order, the defendant perfected an appeal to this Court. On July 9, 1974, in Case No. PC-74-387, this Court entered an order affirming the District Court as to defendant's contention that the record of the proceedings did not support a finding that he personally entered his plea of guilty and, further, the defendant's contention that he was denied the effective assistance of counsel. However, this Court *307 ordered the matter be remanded for an evidentiary hearing to be held within ninety (90) days from the date of the order for the purpose of determining whether or not defendant was fully advised of his rights as set forth in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, and Copenhaver v. State, Okl.Cr., 431 P.2d 669 (1967), and whether or not the defendant voluntarily and intelligently waived said rights. Thereafter, on August 22, 1974, an evidentiary hearing was held on said matter before The Honorable Park W. Lamerton, in the District Court, Garfield County. After taking of sworn testimony, the District Court found the defendant, prior to the entrance of his plea of guilty, had been fully advised of his constitutional rights and said rights were protected. From said ruling, a timely appeal has been perfected to this Court.
The appellant challenges the trial court's findings of fact and conclusions of law and further he argues that the evidentiary hearing had was inadequate to support the trial court's findings that the defendant, prior to the entrance of his plea of guilty, was sufficiently advised of his constitutional rights, specifically his right to a jury trial, his right of confrontation, and his privilege against self-incrimination.
In Boykin, supra, the United States Supreme Court reversed a conviction based on a guilty plea for the reason that the record did not disclose defendant voluntarily and understandingly entered such a plea. In Boykin the Supreme Court noted that a "plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction * * *." Thus, the constitutional "requirement that the prosecution spread on the record the prerequisites of a valid waiver." 395 U.S. at 242, 89 S.Ct. at 1711. The Supreme Court held:
"Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by the reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. Third, is the right to confront one's accusers. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. We cannot presume a waiver of these three important federal rights from a silent record."
Even prior to Boykin, supra, this Court in Copenhaver, supra, in an opinion by Judge Bussey, set forth specific guidelines to follow up on the trial court's acceptance of a defendant's plea of guilty. In Copenhaver, supra, later cited with approval in Smith v. Oklahoma City, Okl.Cr., 513 P.2d 1327 (1973), this Court stated:
"`In all future cases where there is a plea of guilty, the procedure above set forth should be followed; provided, however, that prior to accepting a plea of guilty, the defendant should be informed of the nature and consequences of such plea1,
"`1 In this connection the judge should advise the defendant of the minimum and maximum punishment provided by law for the crime of which the accused stands charged.
of his right to court-appointed counsel, if indigent, and his right to a jury trial, and the record should reflect an affirmative waiver of all of these rights prior to the acceptance of a plea.'"
In our previous order remanding this matter for an evidentiary hearing, we stated:
"The record of the case now before us, however, not only fails to reflect any mention of the privilege against self-incrimination and the right to confront one's accusers, it is wholly barren of any mention of the right to a jury trial."
The record of the evidentiary hearing reflects that the defendant's court-appointed counsel, prior to the defendant's plea of guilty, advised the defendant of the various *308 constitutional rights mentioned in our previous order. The record further reveals that defendant stated he was not advised of said constitutional rights.
We must emphasize that upon acceptance of a guilty plea the responsibility of advising the defendant of his rights as mandated by this Court in Copenhaver, supra, and Smith, supra, lies with the trial court and cannot be delegated to the defendant's counsel. The only evidence which purports to show the defendant was advised of his rights is found in the record of the evidentiary hearing wherein it states:
"Q. Now referring to the official transcript of the court reporter the day he entered his plea of guilty to the sentence, January 1972, the court says:
"`And Mr. Floyd was advised thoroughly of his rights before we waived his preliminary hearing?'"
"Your answer was: `Yes, he was.'"
"Then by the Court again: `Is that true, Mr. Floyd?'
"And then by the defendant, `Yes.'
"Do you recall that conversation taking place where Mr. Floyd was asked if he had been advised of his rights that he had available to him before he entered the plea of guilty?
"A. I don't recall the exact words, but I do recall that he was advised and asked if he was entering his plea voluntarily and had he been advised of his rights and that he himself did answer that he had been advised."
In the instant case we feel the record including that of the evidentiary hearing, does not affirmatively reflect nor can it be established that the trial court, prior to the defendant's plea of guilty, advised the defendant of his rights as mandated by Copenhaver, supra, and Boykin, supra. As so well expressed in Boykin, supra, Justice Douglas observed:
"What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought * * *, and forestalls the spin-off of collateral proceedings that seek to probe murky memories."
We thus feel the record in the instant case fails to provide any such basis for review to establish that the defendant was fully advised of his rights and that he voluntarily and intelligently waived said rights.
IT IS, THEREFORE, THE ORDER OF THIS COURT the judgment and sentence entered in the trial court be vacated, set aside and held for naught and defendant be granted a trial.
WITNESS OUR HANDS, and the Seal of this Court, this 30th day of April, 1975.
             C.F. BLISS, Jr., J.
             HEZ J. HUSSEY, J.


105 F.Supp. 64 (1952)
ALGONQUIN GAS TRANSMISSION CO.
v.
GREGORY.
Civ. No. 3798.
United States District Court D. Connecticut.
June 2, 1952.
*65 James W. Carpenter, Hartford, Conn., for plaintiff.
Leonard McMahon, Danbury, Conn., for defendant.
HINCKS, Chief Judge.
This is one of fifteen condemnation cases, brought originally to the Superior Court for Fairfield County whence they were removed to this court by the defendants. The cases are now before the court on plaintiff's motion to remand.
The removals were made under 28 U.S. C.A. § 1441(a) and (b) which provides:
"(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
"(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought."
Condemnation proceedings are "civil actions" within the meaning of the removal statute. Madisonville Traction Co. v. Saint Bernard Mining Co., 1905, 196 U. S. 239, 25 S.Ct. 251, 49 L.Ed. 462. Here, however, the defendant is a citizen of Connecticut. Hence, the case was removable under subsection (b) of Sec. 1441 only if it was a "civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or law of the United States".
It is the defendant's contention that the removal was proper because (1) the action sought to enforce a "right arising under the law of the United States", and (2) the action is one of which this court would have had original jurisdiction under the Federal Natural Gas Act of 1938, as amended. Public Law 668 of June 21, 1938, c. 556, 52 Stat. 821, et seq., 15 U.S.C.A. § 717. The plaintiff, on the other hand, argues that the action should be viewed not as one arising under the laws of the United States but solely as one brought under the Connecticut Act concerning Natural Gas Pipe Line Companies. 1951 Supp. to Conn.Stat. (1949 Rev.) Secs. 1072b-1089b. Each act thus cited by the parties, respectively, provides that under certain circumstances a company possessing a federal certificate of public convenience and necessity issued under the Natural Gas Act of 1938 may bring an action to condemn property needed for its gas transmission facilities, provided *66 it and the owners of the property are unable to agree on a grant of easement. 15 U.S. C.A. § 717 f(h); 1951 Supp. to Conn.Stat. (1949 Rev.) Sec. 1075b. The federal act provides that actions may be brought under it to condemn property either in the "district court of the United States for the district in which such property may be located, or in the State courts." 15 U.S. C.A. § 717f(h).
The complaint originally filed by the plaintiff, although obviously intended to invoke the state statute only, is fully adequate to state a cause of action under both the federal and state acts. It alleges, in part, that the plaintiff holds a certificate of public convenience and necessity issued under the Federal Natural Gas Act authorizing the construction of a natural gas pipe line within Connecticut; that an easement over property owned by the defendant is necessary to such pipe line; and that it and the defendant have been unable to agree on the damages which will result from its taking of such an easement. So far as appears from the complaint, there is no dispute between the parties as to the construction of the Natural Gas Act. The only dispute disclosed in the complaint is one of fact, viz., the value of the easement which the plaintiff seeks. And the principal dispute for purposes of this motion is whether, as the defendant contends, this action is one founded on a right "arising" under federal law within the meaning of the Removal Act.
The only rights involved in this case which conceivably could be viewed as founded under federal law are (a) a right of condemnation under the Federal Natural Gas Act, and (b) the plaintiff's alleged ownership of a certificate of public convenience and necessity issued to it by the Federal Power Commission under the Federal Natural Gas Act.
(a) This action cannot be viewed as one founded upon a right of condemnation arising under the Federal Natural Gas Act, because the complaint as an assertion of a right of condemnation is adequate under the State statute: the right of condemnation granted by the Federal Act is not essential to the maintenance of action. It is only when a federal right is an essential element of the action that the right, for purposes of the Removal Act, is deemed to be one arising from federal law. Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70; Starin v. New York, 115 U.S. 248, 257, 6 S.Ct. 28, 29 L.Ed. 388; First National Bank v. Williams, 252 U.S. 504, 512, 40 S.Ct. 372, 64 L.Ed. 690; Cf. Puerto Rico v. Russell & Co., 288 U.S. 476, 53 S.Ct. 447, 77 L.Ed. 903.
(b) Nor does the allegation in the complaint of the plaintiff's ownership of the federal certificate of public convenience and necessity have the effect of making the action, for purposes of the Removal Act, one "arising" from federal law. "A suit to enforce a right which takes its origin in the laws of the United States is not necessarily, or for that reason alone, one arising under those laws, for a suit does not so arise unless it really and substantially involves a dispute or controversy respecting the validity, construction, or effect of such a law, upon the determination of which the result depends." Shulthis v. McDougal, 225 U.S. 561, 569, 32 S.Ct. 704, 706, 56 L.Ed. 1205. See also Western Union Tel. Co. v. Ann Arbor R'd Co., 178 U.S. 239, 20 S.Ct. 867, 44 L.Ed. 1052; Louisville & Nashville R. Co. v. Western Union Tel. Co., 237 U.S. 300, 35 S.Ct. 598, 59 L.Ed. 965; Gully v. First National Bank, supra. The case here does not satisfy the test of these cases: the complaint does not show that the plaintiff's rights under its federal certificate are rights which depend upon a disputed construction of the Federal Natural Gas Act or of any other federal statute. And even if such a dispute existed, it is not one the determination of which is within the jurisdiction of this court: under the Federal Natural Gas Act only the appropriate Circuit Court of Appeals has jurisdiction to determine the validity of an order granting such certificate. 15 U.S.C.A. 717r.
Thus, although this court by virtue of the express grant of jurisdiction in the Federal Natural Gas Act had original jurisdiction to condemn, the provision of the Removal Act, 28 U.S.C.A. 1441(b), that in *67 non-diversity cases an action may be removed only if founded on a right arising under federal law is a requirement which has not been satisfied from whichever aspect the pertinent federal right be viewed. It follows that the motion to remand must be granted.
The plaintiff seeks costs under 28 U.S.C.A. § 1447(c). The only cost which the plaintiff appears to have sustained by reason of the removal now held to have been erroneous, is its counsel's fee in prosecuting the pending motion. Assuming that the statute cited was effective to make counsel fees an item of taxable costs (which I doubt) I hold that the allowance of such an item is a matter for the discretion of the court. And here, feeling sure that the removal was not made in bad faith but rather through excusable misapprehension as to the law, I think it just to order that the remand shall be without costs.
It is accordingly ordered that the motion to remand be granted, and that the case be remanded to the Superior Court for Fairfield County at Bridgeport, but without costs.


                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-2805
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

           Jose Corio-Raymundo, also known as Jose Raymundo-Corio

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Northern District of Iowa - Cedar Rapids
                                  ____________

                             Submitted: April 17, 2019
                               Filed: April 22, 2019
                                  [Unpublished]
                                  ____________

Before LOKEN, GRUENDER, and SHEPHERD, Circuit Judges.
                          ____________

PER CURIAM.

       Following a jury trial, Jose Corio-Raymundo was found guilty of knowingly
using a forged identification document as evidence of authorized employment, in
violation of 18 U.S.C. § 1546(a), and of misusing for tax purposes a social security
number not assigned to him, in violation of 42 U.S.C. § 408(a)(7)(B). The district
court1 sentenced Corio-Raymundo to six months in prison and three years of
supervised release, and he appeals, challenging the sufficiency of the evidence
supporting the jury verdict and the reasonableness of the sentence.

       The evidence at trial established, in part, that Corio-Raymundo acknowledged
his work ineligibility during an encounter with an Immigration and Customs
Enforcement employee earlier in the year before he provided an employer with a
Form I-9 and a Form W-4 bearing his name and a social security account number
assigned to another person, as well as a fraudulent version of a social security card
with Corio-Raymundo’s name and that same social security account number. Viewed
in a light most favorable to the verdict, this evidence was sufficient to prove the
elements of the offenses beyond a reasonable doubt. See United States v.
Machorro-Xochicale, 840 F.3d 545, 548 (8th Cir. 2016) (setting forth standard of
review and elements of offenses), cert. denied, 137 S. Ct. 1214 (2017). We also reject
Corio-Raymundo’s challenge to the reasonableness of his six-month prison sentence
because we conclude that the district court, after considering the 18 U.S.C. § 3553(a)
sentencing factors, did not abuse it’s discretion. See United States v. Callaway, 762
F.3d 754, 760-61 (8th Cir. 2014) (presuming reasonableness of within-Guidelines
sentence).

      The judgment is affirmed.
                     ______________________________

      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.

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