                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                     UNITED STATES COURT OF APPEALS April 30, 2013
                                                              Elisabeth A. Shumaker
                                  TENTH CIRCUIT                   Clerk of Court

 PETER J. GIBBONS,

                Plaintiff - Appellant,

 and

 ELSE DONNELL; GLADYS
 MATTHEWS; DANIEL MATTHEWS,

                Plaintiffs,                             No. 11-4208
           v.                                             (D. Utah)
 HIDDEN MEADOW, LLC; WARREN                  (D.C. No. 2:07-CV-00990-CW-SA)
 BRANDOW,

                Defendants - Appellees,

 and

 FRUITLAND DEVELOPMENT
 GROUP; SPRING WATER CAPITAL;
 GREG HOWELL and DERRICK
 BETTS, individuals,

                Defendants.

                              ORDER AND JUDGMENT *

       *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
                                                                      (continued...)
Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.

      Appellant Peter Gibbons and others invested $650,000 in Fruitland

Development Group so that Fruitland could purchase 424 acres from Hidden

Meadow, LLC. The principals of Fruitland, however, spent the $650,000 on other

things and the acreage was never purchased. Several investors brought suit

against the Fruitland principals and included derivative-action claims against

various persons and entities that were allegedly liable to Fruitland. The present

appeal by Gibbons, acting pro se, challenges the district court’s award of

summary judgment to Hidden Meadow and Warren Brandow, a member of the

company (Defendants). Gibbons argues that the district court improperly granted

judgment on claims that Defendants were unjustly enriched, negligently

misrepresented facts, and engaged in a civil conspiracy. 1 We have jurisdiction

under 28 U.S.C. § 1291 and affirm.

I.    DISCUSSION

      A.    Standard of Review

      *
       (...continued)
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
        The district court also entered summary judgment for Defendants on a
claim for receipt of stolen property; Gibbons does not challenge that decision on
appeal.

                                        -2-
      We review the district court’s grant of summary judgment de novo,

“applying the same standards that the district court should have applied.”

Merrifield v. Bd. of Cnty. Comm’rs, 654 F.3d 1073, 1077 (10th Cir. 2011)

(internal quotation marks omitted). Summary judgment is appropriate if the

pleadings and the record establish that there is no genuine issue of material fact

and that the moving party is entitled to judgment as a matter of law. See id. “We

can affirm on any ground supported by the record, so long as the appellant has

had a fair opportunity to address that ground.” Id. (brackets and internal

quotation marks omitted).

      Because Gibbons is acting pro se, we review his pleadings generously. See

Walters v. Wal-Mart Stores, Inc., 703 F.3d 1167, 1173 (10th Cir. 2013). But a

pro se party still must follow the rules of procedure, and we cannot construct

arguments for him. See id. In particular, Gibbons’s arguments against the district

court’s decision must be set forth in his opening brief. See Toevs v. Reid, 685

F.3d 903, 911 (10th Cir. 2012). Challenges to the district court’s ruling that are

not made until the reply brief are waived. See id.; Graham v. Hartford Life &

Accident Ins. Co., 589 F.3d 1345, 1361 n.7 (10th Cir. 2009).

      B.     Unjust-Enrichment Claim

      Gibbons’s first claim was that Defendants were unjustly enriched when

they retained the $150,000 earnest-money deposit that Fruitland forfeited when it

failed to make the payments necessary to close the purchase of the 424 acres.

                                         -3-
The district court granted summary judgment to Defendants on the ground that the

real-estate purchase contract between Fruitland and Hidden Meadow governed the

rights of the parties relating to the contemplated purchase, and that under Utah

law no action for unjust enrichment will lie if the parties have entered into an

enforceable contract on the matter.

      Gibbons’s sole challenge to this decision in his opening brief is that there

was no enforceable contract because Hidden Meadow had misrepresented that a

prior mortgage on the acreage could be subordinated to a mortgage that Fruitland

would need to grant to obtain a loan for the cash payment required at closing for

the purchase. But Gibbons has presented no evidence of a misrepresentation. He

has relied on a finding in the stipulated judgment in this case between Derrick

Betts (a member of Fruitland) and the plaintiffs. The finding is that Betts stated

that Hidden Meadow and Brandow had represented that the prior mortgage could

be subordinated to allow Fruitland to obtain bank financing. But this stipulation

does not bind Hidden Meadow or Brandow, neither of whom were parties to the

settlement. And because Betts’s statement is hearsay, it is not proper evidence in

opposition to a motion for summary judgment. See Wright-Simmons v. City of

Oklahoma City, 155 F.3d 1264, 1268 (10th Cir. 1998). Gibbons argues that

Betts’s statement was admissible under the hearsay exception for statements

against interest. But he fails to argue how the statement was against Betts’s

                                         -4-
interest and makes no attempt to show that Betts was unavailable as a witness, as

would be required to apply the exception. See Fed. R. Evid. 804(b)(3).

      C.     Negligent-Misrepresentation Claim

      Gibbons’s second claim was that Defendants were liable for negligently

misrepresenting that the prior mortgage on the property could be subordinated to

a bank mortgage necessary to allow Fruitland to finance the purchase price. The

district court granted summary judgment on this claim on the ground that Utah’s

economic-loss rule barred recovery of Fruitland’s economic damages in tort

because all of Defendants’ duties to Fruitland arose out of a contract. See

Hermansen v. Tasulis, 48 P.3d 235, 240 (Utah 2002) (“[A] party suffering only

economic loss from the breach of an express or implied contractual duty may not

assert a tort claim for such a breach absent an independent duty of care under tort

law.” (internal quotation marks omitted)). On appeal Gibbons argues that the

economic-loss rule should not have been applied in this case because the district

court “concluded in error that an enforceable contract existed despite triable

issues of fact to the contrary.” Aplt. Br. at 12. As we have already explained,

however, Gibbons failed to bring forward sufficient evidence to support this

argument. He also argues that “the question of whether a duty exists independent

of the contract, such as pre contractual disclosures of conflicts of interests, are

not even considered by the trial court.” Id. But he points to no independent

source of duty. Thus, we affirm the district court’s decision on this claim.

                                          -5-
      D.     Civil-Conspiracy Claim

      As to the civil-conspiracy claim, the district court granted summary

judgment to Defendants because the plaintiffs failed to establish a meeting of the

minds between Brandow and Hidden Meadow on one side and the Fruitland

members on the other. It stated that the plaintiffs’ assertions, “even if evidence

could be offered to support them, substantiate nothing more than that the

Defendants were in a position where they could have conspired.” Aplt. App.,

pt. II at 537 (Memorandum Decision & Order at 10, Gibbons v. Nat. Real Estate

Investors, No. 2:07-cv-00990-CW-SA (D. Utah Dec. 6, 2011)) (emphasis added).

In response Gibbons argues:

      Indeed if it can be shown that the “Defendants were in a position
      where they could have conspired” then it is entirely possible that trial
      testimony could lead a jury to conclude that they did conspire. The
      conclusion by the trial court to the contrary presumes that no further
      evidence or testimony could be introduced at trial.

Aplt. Br at 13. This argument misapprehends Gibbons’ burden in opposing

Defendants’ motion for summary judgment. As the party who would be required

to prove the civil-conspiracy claim at trial, Gibbons had to “make a showing

sufficient to establish the existence of” each challenged element of that claim at

the summary-judgment stage. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

It is not enough to assert that the necessary evidence may be produced at trial.

                                         -6-
II.   CONCLUSION

      We AFFIRM the judgment of the district court on all three claims.

                                     ENTERED FOR THE COURT

                                     Harris L Hartz
                                     Circuit Judge

                                      -7-


154 B.R. 766 (1993)
In the Matter of Ronald G. SPARKS.
CHASE MANHATTAN BANK, N.A., Appellant,
v.
Ronald G. SPARKS, Appellee.
Tazewell Shepard, Trustee.
No. BK 91-82998, Adv. No. 92-80061, Civ. A. No. 92-G-2545-NE.
United States District Court, N.D. Alabama, Northeastern Division.
April 15, 1993.
Denise Deason Toyne, Malvern, PA, for Chase Manhattan Bank.
Philip A. Geddes, Decatur, AL, for Ronald G. Sparks.
Tazewell T. Shepard, III, Wilmer & Shepard, trustee.

MEMORANDUM OPINION
GUIN, Senior District Judge.
This cause comes before the court on appeal from the United States Bankruptcy Court for the Northern District of Alabama, Northern Division, seeking a determination of nondischargeability of a debt under 11 U.S.C. § 523(a)(2)(A).
On December 27, 1991, Ronald G. Sparks [hereinafter referred to as debtor] filed a voluntary Chapter 7 bankruptcy petition under case number BK-91-82998-EDB. On January 14, 1992, the clerk of the court served notice of the first meeting of creditors scheduled for February 7, 1992. The meeting was held and concluded. On April 2, 1992, The Chase Manhattan Bank, N.A. [hereinafter Chase], timely filed a complaint to determine the dischargeability of debt pursuant to 11 U.S.C. § 523(a)(2)(A) under adversary number AP-92-80061.
The clerk of the court issued a summons and notice of pretrial conference in an adversary proceeding on April 6, 1992. A pretrial conference was set for May 19, 1992. The debtor, having been served with *767 the summons and complaint on April 6, 1992, filed his answer on or about April 14, 1992. Thereafter, in lieu of the pretrial conference scheduled for May 19, 1992, counsel for the parties conferred and notified the clerk that they had set discovery deadlines and requested that a trial setting be scheduled after a 90 day discovery period.
On May 15, 1992, the clerk of the court served a notice of trial, scheduling the trial of the adversary proceeding for August 17, 1992.
On June 8, 1992, debtor and his counsel were served with plaintiff's first set of interrogatories, first request for admissions, and first request for production of documents. Debtor served his responses to plaintiff's discovery requests on July 10, 1992.
Trial of the adversary proceedings was held August 17, 1992, before the Honorable Edwin D. Breland. On September 4, 1992, Judge Breland issued an order and memorandum opinion finding that the debt owed to the plaintiff was discharged under 11 U.S.C. § 523(a)(2)(C). Judge Breland did not rule on or discuss whether the debt was nondischargeable under 11 U.S.C. section 523(a)(2)(A).
Plaintiff timely filed its notice of appeal on September 10, 1992. This court has been asked to determine whether the ruling of the bankruptcy court is clearly erroneous. The case comes before the court on facts set forth below.
The debtor, a college educated businessman, has been in the moving and storage business since 1964. He has served as manager and president of two companies since 1969.
In July of 1982, the debtor applied for and obtained a Chase Visa credit card. In March 1987, he accepted a solicitation for a pre-approved Chase Advantage credit line account accessed by use of checks provided to him. Before 1992 the debtor had not been in default on either account.
In May 1990, the debtor's wife sought a divorce. The debtor was removed from his position and employment at White Transfer & Storage Company, Inc. [hereinafter White]. The only property the debtor was awarded in the divorce proceeding was his interest in Sparks Moving and Storage, Inc. [hereinafter Sparks], and one bedroom suite.
In May 1991, White filed suit against the debtor and Sparks for taking customers previously serviced by White. In August 1991, the assets of Sparks were frozen and seized by order of the court. Approximately $27,000.00 belonging to Sparks was placed in escrow.
Beginning August 22, 1991, all profits of Sparks were required to be turned over to the escrow account. Although the debtor's business was making a profit, seizure of the assets and profits left him without operating funds. The debtor's total 1991 income from Sparks was only $10,500.00.
The debtor's September, October, and November 1991 Chase Visa account had a balance ranging between four and five hundred dollars. The minimum payment due each of the three months was paid. The debtor incurred no charges on his Chase Advantage line of credit during the same time period until, on November 22, 1991, he issued a check on this line of credit to Sparks for $1,500. The funds were used to pay salaries and expenses for Sparks.
During the week of December 3, 1991, the lawsuit brought by White went to trial. A jury verdict was issued December 6, 1991, against the debtor. A judgment in the amount of $229,741.00 was entered against him December 9, 1991. The debtor had no money to pay the judgment.
Three days after the jury verdict and the day judgment was entered, December 9, 1991, the debtor wrote a check payable to cash for $5,500.00. Thereafter, between December 16, 1991, and December 23, 1991, he issued 15 checks on the Chase Advantage line totalling $3,140.38. On December 27, 1991, less than 20 days after the $229,741.00 judgment was entered against him and only four days after he issued the last check against the Chase line of credit, the debtor filed his Chapter 7 bankruptcy petition.
*768 Chase has appealed the ruling of the bankruptcy judge, contending that the bankruptcy court's failure to render a decision regarding whether the debt owed to the plaintiff was nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A) was clearly erroneous. Chase maintains that the failure of the bankruptcy court to raise the issue of whether the debt owed to the plaintiff was nondischargeable under 11 U.S.C. § 523(a)(2)(C) was clearly erroneous.
The bankruptcy court found that the debt owed to the plaintiff was dischargeable under 11 U.S.C. § 523(a)(2)(C) which provides exceptions to discharge. Pertinent wording follows:
(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt
. . . . .
(2) for money, property, services, or an extension, renewal or refinancing of credit, to the extent obtained by
. . . . .
(C) . . . consumer debts owed to a single creditor and aggregating more than $500 for "luxury goods or services" incurred by an individual debtor on or within forty days before the order for relief under this title, or cash advances aggregating more than $1,000 that are extensions of consumer credit under an open end credit plan obtained by an individual debtor on or within twenty days before the order for relief under this title, are presumed to be nondischargeable; "luxury goods or services" do not include goods or services reasonably acquired for the support or maintenance of the debtor or a dependent of the debtor; an extension of consumer credit under an open end credit plan is to be defined for purposes of this subparagraph as it is defined in the Consumer Credit Protection Act (15 U.S.C. 1601 et seq.);
Inclusion of the above section of the code was to prevent a debtor contemplating bankruptcy from "loading up" in anticipation of filing bankruptcy. The presumption of no intention to repay can be rebutted. The debtor must demonstrate nonfraudulent intent in connection with the obligation. In re Orecchio, 109 B.R. 285, 290 (Bankr.S.D.Ohio 1989). "[T]he Debtor's rebuttal evidence must raise a substantial doubt in the mind of the trier of fact as to the existence of the presumed intent." Id. If the debtor successfully rebuts the presumption, the creditor is forced to prove intent under Section 523(a)(2)(A), set forth below:
(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt
. . . . .
(2) for money, property, services, or an extension, renewal or refinancing of credit, to the extent obtained by
(A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider's financial condition;
Since the bulk of the indebtedness was incurred within 20 days of the date of filing bankruptcy, the plaintiff could have asserted a claim under Section 523(a)(2)(C). It did not. Chase based its claim on Section 523(a)(2)(A). The overwhelming evidence indicates the debtor lacked the money to repay the judgment entered before he incurred the bulk of the debt to Chase. The debtor knew or should have known he was unable to pay the Chase debts as he incurred them. If he used the credit card knowing he was unable to pay for the purchases [or debts incurred], the cardholder has obtained money by actual fraud. In re Meeks, 139 B.R. 559, 561 (Bankr. M.D.Fla.1992); In re Gnagey, 138 B.R. 1008, 1009 (Bankr.M.D.Fla.1992); In re Rodriguez, 138 B.R. 112, 115 (Bankr. S.D.Fla.1992); In re Preece, 125 B.R. 474, 478 (Bankr.W.D.Tex.1991). Under these holdings, the debt owed to plaintiff is nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A).
The degree of proof is a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991).
*769 In the instant case the debtor knew or should have known he did not have the ability to repay the debts he was incurring. His only source of income was from the assets and income of his business which had been frozen for months. He clearly knew or should have known that he could not repay the $8,640.38 incurred after the jury verdict and subsequent judgment in the amount of $229,741.00 was rendered against him. Incurrence of debt after that time amounts to fraud. Debts incurred by fraud are not dischargeable.
Accordingly, the debtor's debt to Chase in the amount of $8,640.38, the amount incurred after the verdict and judgment were entered against him, is not discharged. The bankruptcy court's finding that this debt was discharged is clearly erroneous and due to be reversed. Rule 8013 of the Bankruptcy Rules[1]; In re Kennemer, 143 B.R. 275, 278 (N.D.Ala.1991); In re Fielder, 799 F.2d 656, 657 (11th Cir. 1986)
An order consistent with this opinion is being entered contemporaneously herewith.
DONE and ORDERED.
NOTES
[1]  "On an appeal the district court or bankruptcy appellate panel may affirm, modify, or reverse a bankruptcy court's judgment, order, or decree or remand with instructions for further proceedings. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witness."


844 P.2d 68 (1992)
STATE PERSONNEL DIVISION OF the DEPARTMENT OF ADMINISTRATION, State of Montana, Petitioner and Appellant,
v.
BOARD OF PERSONNEL APPEALS, DIVISION OF the DEPARTMENT OF LABOR AND INDUSTRY of the State of Montana; and Community Corrections Specialists II, Department of Institutions, Respondents and Respondents.
No. 91-403.
Supreme Court of Montana.
Submitted January 8, 1992.
Decided December 16, 1992.
*69 David L. Ohler argued, Legal Counsel, Dept. of Admin., State Personnel Div., Helena, for petitioner and appellant.
Melanie Symons, argued, Legal Counsel, Dept. of Labor and Industry, Bd. of Personnel Appeals, J.C. Weingartner, argued, Community Corrections Specialists II, Helena, for respondents and respondents.
GRAY, Justice.
The State Personnel Division (Division) of the Department of Administration appeals from a decision and order of the District Court of the First Judicial District, Lewis and Clark County. The District Court affirmed a final order of the co-respondent Board of Personnel Appeals (Board) which granted retroactive pay to the co-respondents Community Corrections Specialists II, employees of the Department of Institutions (employees). We reverse and remand.
The issue we address on appeal is whether the District Court erred in affirming the Board's order granting retroactive pay to the employees.
The employees initiated a classification appeal by filing a petition with the Board on April 24, 1987. They sought a classification review of their Community Corrections Specialist II (CCS II), grade 12, classification. The Board designated the classification appeal a group classification appeal pursuant to 24.26.513, ARM.
The Division submitted a Step III response to the group classification appeal on August 31, 1987. The response included the Division's findings that the employees' positions were properly classified as CCS II, grade 12. The Division also found that while the appeal investigation did not yield a more appropriate class for the employees, comparisons to other positions, including Community Corrections Specialist III (CCS III), grade 13, indicated a need for a series review; complicating the classification appeal was a reassignment of some employees to the then newly-created Department of Family Services. The Division further found:
The State Personnel Division shall conduct a review of the Community Corrections Specialist Series to determine whether 1) the reassignment of some [of the employees] to the Department of Family Services will affect their position classifications; 2) a grade level distinction exists between the [CCS II and CCS III] classes; and 3) the appropriate grade levels have been assigned to Community Corrections Specialists Series.
On September 15, 1987, the parties stipulated that, pending the series review, the employees' classification appeal would remain in full force and effect; the stipulation specifically preserved the established date of filing. The stipulation also waived *70 the time requirement for appealing the Step III decision until the series review was completed.
The Division completed its series review on June 3, 1988. It developed a new classification for positions assigned adult case supervision under the Department of Institutions. All positions at grades 11 and 12 were reclassified to Probation and Parole Officer, grade 13. Positions assigned juvenile case loads, under the Department of Family Services, were reclassified as Family Services Specialists II, grade 13. The reclassification and resultant upgrade became effective on July 1, 1988. The Division determined that the employees were not entitled to retroactive pay because they were properly classified when they filed their classification appeal, based on the standards then in place.
On June 10, 1988, the employees advanced their classification appeal to Step IV of the grievance procedure. The parties stipulated to the issues to be presented to the hearing examiner at a hearing which was held on January 13, 1989. The issues were whether the CCS III class specification was a better description of the employees' position duties than CCS II and whether the employees' position duties were more similar to those positions assigned to CCS III.
The hearing examiner issued his findings of fact, conclusions of law and recommended order on April 7, 1989. He found that the CCS III class was distinguished from the employees' class only by the addition of special assignments. However, he denied the employees' request to be reclassified on the grounds that they did not demonstrate that they performed the additional duties assigned to the higher class, that they were improperly classified, or that the Division failed to comply with the established methods or standards when considering their classification appeal.
The hearing examiner also found that the Division's investigation resulting from the employees' classification appeal indicated a need for a classification series review and that "[a]ny upgrade resultant from that series review must be retroactive." He concluded that the employees were aggrieved when their reclassification was not made retroactive. He recommended an order that those employees reclassified as a result of the series review be paid the difference between what they had been paid and what they would have been paid had the results of the series review been made retroactive to thirty days prior to the date of their classification appeal.
The Division filed exceptions to the findings of fact, conclusions of law and recommended order. The Division asserted that because the hearing examiner found against the employees on the two issues stipulated to by the parties prior to the hearing, the hearing examiner's recommendation that the employees be awarded retroactive pay was improper. After oral argument, the Board remanded the case to the hearing examiner for further proceedings pursuant to the stipulations in effect at the time of the previous hearing, together with the issue of retroactive pay. The Board's order did not address the question of retroactivity other than setting the cause for rehearing.
Another hearing was set for September 26, 1989. At a prehearing conference on September 5, 1989, the parties agreed that the hearing examiner would not hear additional evidence on the two previously stipulated issues. The sole issue presented to the hearing examiner was whether there was "linkage" between the employees' classification appeal and the series review and, if so, whether that linkage provided a basis for retroactive pay.
The hearing examiner issued his second findings of fact, conclusions of law and recommended order on March 14, 1990. He reaffirmed his earlier findings on the original two issues and further found that there was linkage between the employees' classification appeal and the series review. He found that the Division recognized the need for a series review prior to the employees' classification appeal and, while the classification appeal may not have been the motivating factor for the series review, it was a factor which, together with others, accelerated that review to correct a recognized *71 need. The hearing examiner again recommended retroactive pay based on his conclusion that the linkage between the employees' classification appeal and the series review "[m]eans that the [employees] were aggrieved when their resultant reclassification and upgrade was not made retroactive to thirty (30) days prior to the date of their Wage and Classification Appeal."
The Division again filed exceptions to the findings of fact, conclusions of law and recommended order. The matter was argued to the Board on June 6, 1990. The Division argued that the hearing examiner's recommendation of retroactive pay was improper because the employees were not found to be aggrieved on the two original stipulated issues. It further argued that, because the employees were properly classified at the time they brought their appeal, any link between the employees' appeal and the Division's series review was not sufficient to provide a basis for retroactive pay. The Board adopted the hearing examiner's findings of fact, conclusions of law and recommended order on June 28, 1990. The Division's petition for rehearing was denied.
The Division filed a petition for judicial review of the Board's decision and order in the District Court on October 5, 1990. The court determined that the Board's decisions were substantially supported by the record. It further determined that the award of retroactive pay to the employees was proper and affirmed the Board's decision and order. This appeal followed.
Did the District Court err in affirming the Board's order granting retroactive pay to the employees?
In reviewing an administrative agency's findings of fact, the standard of judicial review used is whether the findings are clearly erroneous in view of the reliable, probative and substantial evidence in the whole record. Section 2-4-704, MCA; Dept. of Revenue v. UPS, Inc. (1992), 252 Mont. 476, 830 P.2d 1259, 49 St.Rep. 20. An agency's conclusions of law will be upheld if the agency's interpretation of the law is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.
The Division contends that the District Court erred in affirming the Board's order granting retroactive pay because the order was contrary to this Court's decision in Matter of the Classification Appeal of Warren C. Mead v. Board of Personnel Appeals (1988), 235 Mont. 08, 766 P.2d 1300. A review of Matter of Mead is necessary for resolution of the present case.
Matter of Mead involved a classification appeal by Highway Patrol Officers. Employees in the positions of Sergeant, Lieutenant and Captain initiated a grievance before the Board seeking to compel the Division to adopt new position descriptions, develop new class specifications and reclassify their respective positions. New position descriptions were submitted to, and adopted by, the Division. The Division then reclassified the positions. The new classification resulted in an assignment of the same grades to the officers. The officers appealed the assignment of grades to the Board. A hearing examiner found that the officers were aggrieved and recommended that they be reclassified by raising their grade levels one pay grade. The Board amended the recommended order by requiring the Division to conduct a classification series review.
The Division conducted a series review and recommended that the officers retain the original grade assigned to their class. The Board rejected the recommendation and adopted the hearing examiner's original findings of fact, conclusions of law and recommended order. The district court reversed the Board's order on the basis that it violated Section 2-18-203(2), MCA, which prohibits an appeal of the grade assigned to a class.
On appeal, the Board argued that under Section 2-18-1012, MCA, and our decision in Hutchin v. State (1984), 213 Mont. 15, 688 P.2d 1257, it had authority to resolve any grievance even if resolution of the classification appeal resulted in reallocation of the grade assigned to a class. Section 2-18-1012, MCA, provides in part:

*72 If upon the preponderance of the evidence taken at the hearing the board is of the opinion that the employee is aggrieved, it may issue an order to the appropriate agency or agencies of state government requiring such action as will resolve the employee's grievance.
Hutchin involved a wrongful discharge grievance  rather than a classification appeal under Section 2-18-203  by a former employee of the Department of Fish, Wildlife and Parks. Under Section 87-1-205, MCA, grievances against that Department are governed by Sections 2-18-1011 through X-XX-XXXX, MCA. The Board found the employee aggrieved, ordered reinstatement and denied an award of back pay. In affirming the Board's decision, we stated that "[i]t is apparent from section 2-18-1012, MCA, that if the Board of Personnel Appeals determines that the employee is aggrieved, it has full discretion to resolve the employee's grievance." Hutchin, 213 Mont. at 19, 688 P.2d at 1260.
We rejected the Board's contention in Matter of Mead that, based on our holding in Hutchin, it had the authority to resolve any grievance. We affirmed the district court's reversal of the Board's decision, stating:
Contrary to [the Board's] contention, the District Court found that the Board is limited in a classification appeal by Section 2-18-203(2), MCA, to determining whether a position has been properly classified by the Division. The court held that the Board was without authority to create new classifications or to assign grades to classifications, and it distinguished Hutchin by stating:

"Hutchin involved the discharge of a state employee for personal use of state owned property. In Hutchin the board directed that the discharged employee `be reinstated as of the date of this final order to the position he held with the department' at the time of his termination. That is the type of remedy that is uniquely within the discretion of the board. However, the board's order here usurps a function that has been delegated exclusively to the division."
We agree with the District Court's holding that the board is limited to determining whether a position is properly classified. If a position is improperly classified, the Board may then order the Division to reclassify the position in accordance with its existing policy.
Matter of Mead, 235 Mont. at 215-16, 766 P.2d at 1304-05.
Thus, under Section 2-18-203(2), MCA, and Matter of Mead, the Board in a classification appeal is limited to determining whether a position is properly classified. If the Board determines that the position is improperly classified, and the employee is, therefore, aggrieved, the Board can resolve the grievance under Section 2-18-1012, MCA, by ordering the Division to reclassify the employee's position and, as appropriate, ordering other remedies such as retroactive pay. In contrast, because no classification appeal was involved in Hutchin, the Board was not limited by Section 2-18-203, MCA, and was free to fashion an appropriate remedy under Section 2-18-1012, MCA, upon finding that an employee was aggrieved.
We conclude that, under the circumstances presented in the present case, the Board exceeded its legal authority when it granted retroactive pay to the employees. Prior to the first hearing before the hearing examiner, the parties stipulated that the issues were whether the employees were improperly classified as CCS II and whether they should have been classified as CCS III. The employees were not found to be aggrieved on either issue. The hearing examiner, and ultimately the Board, found that the employees were properly classified as CCS II based on the class specifications that were in place at the time the employees brought their classification appeal. These findings remained unchanged throughout the subsequent history of the case.
Even though the Board found that the employees were properly classified at the time they brought their classification appeal, it awarded the employees the increase in pay which resulted from their reclassification, retroactive to thirty days before they brought their appeal. This grant of *73 retroactive pay was based on a finding of "linkage" between the employees' classification appeal and the Division's series review. While linkage between the classification appeal and the series review existed, we conclude that that linkage was not legally sufficient to provide a basis for retroactive pay. Under Section 2-18-203, MCA, and Matter of Mead, a determination by the Board that the employees were improperly classified was a prerequisite to granting a remedy to the employees. Having found the employees to be properly classified, the Board exceeded its statutory authority in granting retroactive pay.
In addition, because the employees were found to be properly classified as CCS II, grade 12, at the time they brought their appeal, the effect of the award of retroactive pay was to upgrade the employees' positions to a higher pay grade during the very time period that they were found to be properly classified. As such, the Board's order was tantamount to an assignment of a new grade to the employees' class in violation of Section 2-18-203(2), MCA. Matter of Mead, 235 Mont. at 217-18, 766 P.2d at 1306. Based on the foregoing, it is clear that the Board incorrectly concluded that the employees were entitled to retroactive pay and exceeded its authority in granting such pay. Accordingly, we hold that the District Court erred in affirming the Board's order.
The Division raises additional arguments in support of its position that the District Court erred in affirming the Board's order granting retroactive pay to the employees. In light of our holding in this case, these arguments need not be addressed.
Reversed and remanded for proceedings consistent with this opinion.
TURNAGE, C.J., and HARRISON, McDONOUGH and WEBER, JJ., concur.
TRIEWEILER, Justice, dissenting.
I dissent from the majority opinion.
The majority is correct that pursuant to our decision in Matter of Mead (1988), 235 Mont. 208, 766 P.2d 1300, the Board of Personnel Appeals cannot review and correct the grade assigned to a particular class. However, the majority opinion is incorrect when it concludes that our decision in Mead and Section 2-18-203, MCA, requires a determination by the Board that employees were improperly classified before retroactive pay can be awarded. Our decision in Mead did not deal with the circumstances under which retroactive pay can be awarded, and there is nothing in Section 2-18-203, MCA, which specifically links an award of retroactive pay to the Board's decision on the issue of classification.
Furthermore, I disagree that the employees were found to be properly classified at the time they brought their appeal. The State Personnel Division's investigation found that based upon the classes then available, Community Corrections Specialist II, Grade 12, was as good as any. However, the Department went on to acknowledge that its investigation indicated that a complete review of the classifications was necessary. That review resulted in the employees' reclassification. It was in that reclassified posture that this case came before the Board. The Board simply determined whether the Department's reclassification of the employees was a result of their appeal. No one has challenged the Board's finding that there was in fact linkage between the appeal and the reclassification by the Department.
The facts in this case are not similar to the facts in Mead. In that case, the hearing examiner for the Board of Personnel Appeals recommended raising the employees' grade level by one pay grade. The Board issued findings and conclusions adopting that recommendation and we held that the Board was without authority to entertain an appeal of a pay grade.
In this case, the Board did not issue an order changing the employees' pay grade. No action of the Board resulted in a change in the employees' pay grade. The employees appealed their classifications to the State Personnel Division. As a result of that appeal, the Division concluded that the classifications in question should be reviewed. As a result of that review, the *74 employees were reclassified by the Department and assigned a different grade.
All the Board did in this case was determine that based upon the employees' reclassification, they were entitled to retroactive pay for 30 days prior to the date their appeal was filed. This is the exact relief authorized by Section 2-18-203(3), MCA. The majority opinion has placed qualifications on the award that are not found in the statute.
Our specific holding in Mead was that the Board of Personnel Appeals could not create classifications, nor assign grades within classifications. In this case, the Board's decision to award retroactive pay was not based on its creation of any new classification. Nor was it based on the Board's assignment of any new grade to the employees. It was based on the Board's determination that the Division's review of the employees' classifications, and the Department's subsequent reclassification of the employees, was linked to the employees' original classification appeal to the Division.
On appeal, the Division argues, and the majority concludes, that the only issue before the Board was whether the employees should have been classified CCS III, rather than CCS II. The majority concludes that since the employees did not prevail on this issue, they were not aggrieved. However, limiting the issue presented to the Board in that manner is incorrect. At the second hearing before the Board's hearing examiner, the parties stipulated that the issue to be decided by the hearing examiner would be:
Whether there is linkage between the wage and classification appeal of the Community Corrections Specialist II class and the class review of the Community Corrections Specialist series, and if so, does that linkage provide a basis for awarding retroactive pay.
After considering the evidence, the hearing examiner found that there was linkage. There was substantial evidence to support that finding on appeal, and no one contends that it was clearly erroneous.
Therefore, I conclude that it was not the Board which changed the employees' grade. That grade was changed by the Department in response to the employees' appeal. The Division, however, refused to award the retroactive pay to which the employees were entitled, based upon that reclassification. Therefore, the Board was within its authority when it considered the issue of retroactive pay on appeal.
For these reasons, I would affirm the decision of the District Court.
HUNT, J., concurs in the foregoing dissent of TRIEWEILER, J.


J.S45044/15

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

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
HEATHER K. HOUSEWEART,                      :
                                            :
                          Appellant         :     No. 474 MDA 2015

                   Appeal from the PCRA Order March 4, 2015
               In the Court of Common Pleas of Lycoming County
               Criminal Division No(s).: CP-41-CR-0001036-2011

BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 23, 2015

        Appellant, Heather K. Houseweart, appeals from order entered in the

Lycoming County Court of Common Pleas, dismissing her first petition filed

pursuant to the Post Conviction Relief Act1 (“PCRA”).          Appellant avers

counsel was ineffective for failing to call a material witness at trial.   We

affirm.

        Following a jury trial, Appellant was convicted of aggravated and

simple assault. These charges arose from an altercation between Appellant

and Jill Suzanne Kinley (“Victim”) in the bathroom of the Eagles Club, a bar

in Williamsport on March 26, 2011. N.T., 3/1/12, at 23, 26.

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
J.S45044/15

      On June 4, 2012, Appellant was sentenced to three to six years’

imprisonment.    On April 4, 2013, Appellant filed a PCRA petition.          On

September 12, 2013, the PCRA petition was dismissed based upon counsel’s

failure to comply with the June 27, 2013 order of the PCRA court. Order,

9/12/13. On September 30, 2013, Appellant filed a pro se notice of appeal.

On April 30, 2014, this Court vacated the September 12, 2013 order and

remanded for the appointment of new counsel.              Commonwealth v.

Houseweart, 1760 MDA 2013 (unpublished memorandum) (Pa. Super. Apr.

30, 2014).

      On July 16, 2014, the PCRA court entered an order stating that

because the notes of testimony from the trial were unavailable, “it is the

[c]ourt’s reluctant conclusion that the only realistic way to achieve justice in

this matter is to order a new trial.    The [c]ourt acknowledges that this is

being raised sua sponte and would like input from all parties, including the

Commonwealth and new PCRA counsel.” Order, 7/16/14. On September 3,

2014, the PCRA court entered an order directing defense counsel to file

either an amended PCRA petition or a letter pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1988), within thirty days of the date of the order because

the notes of testimony had been located. Order, 9/3/14. Counsel filed an

amended PCRA petition on October 6, 2014. On March 4, 2015, the PCRA

petition was dismissed. This timely appeal followed. Appellant filed a timely

                                       -2-
J.S45044/15

court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on

appeal. The PCRA court filed a responsive opinion.

        Appellant raises the following issue for our review:

           The trial court erred by denying Appellant a new trial due
           to trial counsel’s failure to call Doctor John H. Bailey who
           would have offered testimony key to the defense’s
           argument at trial on the issue of causation and specifically
           on whether the victim’s injuries were consistent with an
           accidential [sic] fall brought on in part by the victim’s
           extreme intoxicated state consistent with Dr. Bailey’s
           witness statement filed in the above matter.

Appellant’s Brief at 4. Appellant argues that Dr. Bailey could have rendered

an opinion on causation and potential causes of the injuries sustained by

Victim. Id. at 14. Dr. Bailey “performed an open reduction and fixation on

[V]ictim’s left both-bone forearm fracture . . . .”      Id.    Appellant contends

causation was the key issue at trial because Appellant maintained Victim’s

injuries were caused after Appellant left the bathroom. Id. at 15. Appellant

claims counsel acknowledged her ineffectiveness in the Witness Certification

that she filed pursuant to Pa.R.Crim.P. 902(A)(15). 2          Id. at 16.    Counsel

2
    Rule 902(A)(15) provides:

           (A) A petition for post-conviction collateral relief shall bear
           the caption, number, and court term of the case or cases
           in which relief is requested and shall contain substantially
           the following information:

                                    *    *    *

           (15) if applicable, any request for an evidentiary hearing.
           The request for an evidentiary hearing shall include a

                                        -3-
J.S45044/15

stated: “I also did not subpoena Dr. John H. Bailey who performed surgery

on [Victim] on March 27, 2011 and who would have also been able to offer

testimony concerning the causation of [Victim’s] injuries, her level of

intoxication and its effects on her physical well being and memory of the

evening’s events.” Id. at 17, (quoting Witness Certification, 10/6/14, at ¶

13).

       This Court has stated:

           Our standard and scope of review for the denial of a
         PCRA petition is well-settled.

            [A]n appellate court reviews the PCRA court’s
            findings of fact to determine whether they are
            supported by the record, and reviews its conclusions
            of law to determine whether they are free from legal
            error. The scope of review is limited to the findings
            of the PCRA court and the evidence of record, viewed
            in the light most favorable to the prevailing party at
            the trial level.

                                 *    *    *

         . . . Counsel is presumed effective, and to rebut that
         presumption, the PCRA petitioner must demonstrate that
         counsel’s performance was deficient and that such
         deficiency prejudiced him.   In Pennsylvania, we have
         refined the [Strickland v. Washington, 466 U.S. 668
         (1984),] performance and prejudice test into a three-part
         inquiry. Thus, to prove counsel ineffective, the petitioner

         signed certification as to each intended witness, stating the
         witness’s name, address, and date of birth, and the
         substance of the witness’s testimony. Any documents
         material to the witness’s testimony shall also be included
         in the petition . . . .

Pa.R.Crim.P. 902(A)(15).

                                     -4-
J.S45044/15

        must show that: (1) his underlying claim is of arguable
        merit; (2) counsel had no reasonable basis for his action or
        inaction; and (3) the petitioner suffered actual prejudice as
        a result. If a petitioner fails to prove any of these prongs,
        his claim fails. . . .      To demonstrate prejudice, the
        petitioner must show that there is a reasonable probability
        that, but for counsel’s unprofessional errors, the result of
        the proceedings would have been different. A reasonable
        probability is a probability that is sufficient to undermine
        confidence in the outcome of the proceeding.

                                  *    *    *

           [A] defendant [raising a claim of ineffective
           assistance of counsel] is required to show actual
           prejudice; that is, that counsel’s ineffectiveness was
           of such magnitude that it “could have reasonably had
           an adverse effect on the outcome of the
           proceedings.”

Commonwealth v. Charleston, 94 A.3d 1012, 1018-19 (Pa. Super.)

(some citations omitted), appeal denied, 104 A.3d 523 (Pa. 2014).

     To establish counsel’s ineffectiveness for failure to call a witness, a

petitioner must demonstrate that:

        (1) the witness existed; (2) the witness was available; (3)
        counsel was informed of the existence of the witness or
        counsel should otherwise have known of him; (4) the
        witness was prepared to cooperate and testify for
        Appellant at trial; and (5) the absence of the testimony
        prejudiced Appellant so as to deny him a fair trial. A
        defendant must establish prejudice by demonstrating that
        he was denied a fair trial because of the absence of the
        testimony    of    the     proposed     witness.        Further,
        ineffectiveness for failing to call a witness will not be found
        where a defendant fails to provide affidavits from the
        alleged witnesses indicating availability and willingness to
        cooperate with the defense.

                                      -5-
J.S45044/15

Commonwealth v. O'Bidos, 849 A.2d 243, 249 (Pa. Super. 2004)

(citations omitted).

      Instantly, the PCRA court opined:

         Medical evidence was introduced to show that [Victim]
         suffered a fracture of her left ulna and radius as well as
         ligament tears in her left knee.         The Commonwealth
         presented testimony that [Appellant] inflicted the injuries
         on [Victim. Appellant] testified, however, that although
         there was some pushing back and forth with the bathroom
         door, [Victim] was still standing when [Appellant] left the
         bathroom and had not been injured. [Appellant] asserted
         that the injuries were the result of a fall.

            In her petition, [Appellant] asserted that trial counsel
         was ineffective for failing to call as a witness John Bailey,
         M.D., who performed the surgery on [Victim’s] arm. The
         court found no ineffectiveness as it believed Dr. Bailey’s
         testimony, as contained in the witness certification filed
         January 6, 2015, would have been more favorable to the
         prosecution than the defense.              According to the
         certification, Dr. Bailey would have testified that “it is
         certainly not outside of the realm of possibility” that
         [V]ictim’s injuries were caused by a fall rather than from
         the alleged assault, but that “it is unlikely that a simple fall
         would result in this severity of injuries to both the knee
         and forearm.” The court believed such testimony to be too
         speculative to support [Appellant’s] request for a hearing.

PCRA Ct. Op., 3/31/15, at 1-2. Additionally, in the witness certification, Dr.

Bailey stated

         I don’t have any specific recall of this patient, but from
         reading my history and physical, operative note, and
         discharge summary, the best that I can tell you is that
         [Victim] reported to me that she was involved in an
         altercation. She sustained fractures of the radius and ulna
         of the left forearm and left knee medial collateral ligament
         and anterior cruciate ligament tears. . . . I would state
         that she was consistent at every step of the process in
         reporting that this was, in fact, an altercation.

                                      -6-
J.S45044/15

Witness Certification of Doctor John H. Bailey, Jr. in Accordance with

[Pa.R.Crim.P.] 902(A)(15).

      At trial, Victim testified that she had started drinking at the Eagles

Club between 11:30 and noon. N.T., 3/1/12, at 23. She had about eight

mugs of beer prior to the incident. Id. She went to the bathroom between

seven and eight p.m.     Id. at 24.    When she exited the bathroom stall,

Melissa Palmer and Appellant were in the bathroom. Id. at 25. Appellant

started yelling and Victim told her “[t]he only thing I want to hear out of you

is that you have the money that you owe me.” Id. Victim stated:

             I was drying my hands and I backed up so that another
         girl could get to the paper towels and that put me
         basically, if you would open the door, behind the door of
         the restroom.

                                 *     *    *

            I remember being slammed with the door multiple
         times. I remember hitting the floor. I got back up and I
         started to be slammed with the door again and I was
         knocked unconscious. I came to on the floor and that’s
         when Melissa Palmer asked me if I hit my head, and I
         looked up at my arm and saw that my bones were sticking
         out of my arm and I couldn’t get up because I couldn’t
         move my leg.

Id. at 25-26.

      At trial, the Commonwealth read from Victim’s medical records. Id. at

29. The Commonwealth stated:

            If the manager of the health records department for
         Susquehanna Health was here today she would testify that
         at 8:59 p.m. on March 26, 2011 [Victim] arrived at the

                                      -7-
J.S45044/15

          Williamsport Hospital.   Upon arrival [she] had an IV
          inserted and morphine was administered. At 10:45 p.m. a
          long arm splint was applied to [her] left arm, elbow,
          forearm, wrist, and hand. The splint was secured with two
          four-inch ace wraps. At 11:25 [she] attempted to stand
          and bear weight and was unable to bear weight on her left
          leg.

Id. at 29.

      The medical records indicated that on March 27th, Victim had surgery

on her arm described as “open reduction and internal fixation, left radius and

ulnar fracture.” Id. at 34. She had surgery for her left knee at Geisinger

Medical Center.     Id. at 35, 37.         “The procedure involved ligament

reconstruction.” Id. at 37. Following surgery, her leg was in a brace and

she was unable to walk for ten weeks.         Id. at 36.   Victim did physical

therapy at Williamsport Hospital three times a week for four months. Id. at

39, 40.

      Shannon Louise Wanamaker, a bartender at the Eagles Club, testified

that she worked on the day of the incident from 10:30 a.m. until 6:30 p.m.

Id. at 47. She saw Victim on the floor of the bathroom and asked her what

happened. Id. at 48. Victim told her Appellant “beat the shit out of me.”

Id.

      Erin Dailey, a paramedic, treated Victim as a result of an emergency

dispatch from the Eagles Club regarding an assault victim.      Id. at 61-62.

She arrived at 8:15 p.m.      Id. at 65.   Victim told her that she had been

drinking since one o’clock.    Id. at 68.     When asked if Victim appeared

                                     -8-
J.S45044/15

intoxicated, Ms. Dailey stated that “[s]he was anxious, so that can be from

pain. It could be from drinking. It’s really hard to tell how much is from

what.” Id.

     Melissa Palmer testified that she was in the bathroom stall at the time

of the incident. Id. at 72. Palmer “came out of the stall and [Victim] was

on the floor trying to stand up and [Appellant] was over her yelling

profanities.” Id. She observed the following interaction between Victim and

Appellant:

           Like, she would say─like, she was saying, you know,
        you’re not so “F” ing tough now, are you, “B?” And
        [Victim] stood up and she looked really dazed and kind of
        confused, and [Appellant] grabbed the door to leave the
        restroom and when she opened it she pinned [Victim] in
        between the door and the wall. [Victim’s] arms were up
        against wall [sic] and [Appellant] took her full body and
        slammed into her in this door five or six times, saying,
        you’re not so tough now, are you, “B”? And you want to
        keep running your mouth, this is what happens.
        [Appellant] walked out of the bathroom.

                                 *    *    *

            When the door was closing [Victim] turned and when
        she went to take a step she fell to the floor, and I thought
        she hit her head or something because I heard like a─that
        wap sound, so I leaned over and said, oh, my God, did you
        just hit your head? And she said, I think I broke my arm.
        She lifted her arm up and it was like─the bones were
        sticking out and stuff.

Id. at 72-73, 74.

     Walter Zuravensky, Jr., “was at the Eagles Club shooting pool” with

Appellant on the date of the incident. Id. at 83, 84. Appellant told him that

                                     -9-
J.S45044/15

she owed Victim money and Appellant said “I’m tired of her giving me all

that shit and I should just punch her.” Id. at 87. After he finished shooting

pool, he went to go to the bathroom and he saw Appellant. Id. Appellant

told him she “just knocked that fucking bitch out.” Id.

      Patrolman   Jimmie   William    Rodgers     of    the   Williamsport   Police

Department testified he “was dispatched to the Eagles Club for a fight that

had occurred.” Id. at 99. Victim was lying on the floor in the restroom with

a visibly broken arm “complaining of an injury to her left knee.” Id. at 100.

She was “highly intoxicated” in his opinion.      Id.   Melissa Palmer told him

when she came out of the bathroom “she saw [Appellant] slam the door

open against [Victim], saw [Victim] drop to the floor and heard [Appellant]

call her a bitch as she exited the bathroom.” Id. at 100-01.

      Appellant testified that as she “was trying to get out of the bathroom,

[Victim was] pushing the door shut on [her].” Id. at 127. “[W]e were both

fighting, her pushing the door to keep me in and me pushing the door to get

out.” Id. at 129. Appellant stated she “had absolutely nothing to do with

them [sic] injuries. She was fine when I walked out of that bathroom. She

was standing and there was no blood.”         Id. at 137.     Appellant never saw

Melissa Palmer in the bathroom.       Id. at 140.        According to Appellant,

Palmer’s testimony was false. Id.

      We find Appellant has not satisfied the prejudice prong of the

ineffective assistance of counsel test.   See Charleston, 94 A.3d at 1019.

                                     - 10 -
J.S45044/15

Appellant has not shown that the absence of the testimony of Dr. Bailey

prejudiced her so as to deny her a fair trial. See O’Bidos, 849 A.2d at 249.

Therefore, her ineffective assistance of counsel claim for failure to call a

witness is without merit.   See id.   The evidence of record supports the

determination of the PCRA court. See Charleston, 94 A.3d at 1019.

     Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/23/2015

                                   - 11 -


538 U.S. 990
ROMEROv.UNITED STATES.
No. 02-9439.
Supreme Court of United States.
April 21, 2003.

1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

2
C. A. 8th Cir. Certiorari denied.


228 B.R. 674 (1998)
In re Jeffery Gayle SOMMER, Debtor.
Bankruptcy No. 97-83148.
United States Bankruptcy Court, C.D. Illinois.
March 13, 1998.
*675 Conrad Knuth, Ohio, IL, for Debtor.
Gary Rafool, Peoria, IL, for Trustee.

OPINION
WILLIAM V. ALTENBERGER, Chief Judge.
The Debtor is a 38 year old quadriplegic who lives with his parents. His father is an over the road truck driver, who earns a reasonable income. His mother stopped working at a department store to stay at home and take care of her son. The parents modified their home so the Debtor could live with them. The Debtor receives approximately $700 per month as a social security disability payment, which is used to pay his personal expenses and help to pay the expenses of the home.
At the time the Debtor filed his Chapter 7 case in Bankruptcy he was the insured under two life insurance policies with cash values totaling $6,881.60 and the parents being the beneficiaries. The Debtor claimed the interests in the policies as exempt and the Bankruptcy Trustee objected.
At issue is the interpretation and application of § 12-1001(f) of the Illinois Code of Civil Procedure, which provides an exemption for:
All proceeds payable because of the death of the insured and the aggregate net cash value of any or all life insurance and endowment policies and annuity contracts payable to a wife or husband of the insured, or to a child, parent, or other person dependent upon the insured. . . .
735 ILCS 5/12-1001(f). The Trustee objected to the Debtor's claim of exemption in the life insurance policies on the grounds the Debtor's parents are not dependent upon him. The Debtor argued that the statute creates separate classes for spouses, children and parents, with no dependency requirements and for other persons dependent on the insured. Both the Trustee and the Debtor cite authority in support of their positions.
The Debtor relies on In re Heck, 212 B.R. 314 (Bkrtcy.C.D.Ill.1997), where J. Lessen, a fellow Bankruptcy Judge for the Central District of Illinois, allowed an exemption where the Debtor's non-dependent children were the beneficiaries, stating:
Both parties have offered credible interpretations of the exemption statute. The Trustee argues that the Illinois General Assembly has required that life insurance benefits "be payable `to' one class (spouses), and then has designated an alternate class by using the term `or' followed by `to' and the listing of the members of that class". The Trustee suggests that if the legislature intended to exempt all insurance policies payable to children or parents, then it would have drafted the exemption as "payable to a wife or husband of the insured, or to a child or parent, or to any other person dependent upon the insured" or "payable to a wife, husband, child or parent of the insured, or to any other person dependent upon the insured".
The Debtor argues that the word "dependent" is a qualifying word, and, under the rules of statutory construction, it is to be applied to the words or phrases immediately preceding it, and not extended to other words, phrases or clauses more remote, unless the intent of the legislature required such an extension. In re Rhodes, 147 B.R. 443, 446 (Bankr.N.D.Ill.1992). The Debtor further argues that it is significant that the legislature placed the disjunctive word "or" before the phrase "other person dependent", thereby separating "other person" from the rest of the sentence. *676 Finally, the Debtor suggests that if the legislature intended for relatives of the debtor to be dependent as well as any other person, it would have placed its comma after person and before dependent, i.e., the statute would have read "payable to a wife or husband of the insured, or to a child, parent or other person, dependent upon the insured".
Determining the plain meaning of a statute is almost always a tricky procedure. As one commentator has observed, "Lawyers are paid to disagree; it is the very nature of our adversarial system. Five lawyers worth their salt can come up with five different meanings for `Mary had a little lamb'". Palmer, What will Dewsnup Do to 1322(b)(2) Or The Lien Splitter Meets the Tin Woodman, NACTT Quarterly, Vol. 5, No. 3, p. 25 (April 1992). In this case, both parties maintain that the plain meaning of the statute supports their position and both parties have suggested alternate wording or punctuation which the legislature would or should have used if it intended the interpretation advanced by the other side.
Statutes should be construed to give them a reasonable meaning and to prevent an absurd result. In re Rhodes, supra, 147 B.R. at 446. The court believes that there is a fundamental difference in a debtor's relationship to a spouse, parent or child, and a debtor's relationship to an "other person". The family ties of a debtor or to a spouse, parent or child limit the scope of the exemption. Clearly, there must be some sort of limitation on "other person" or the exemption would be so broad that it would be absurd. The Court believes that the qualifying language "dependent upon the insured" was intended by the legislature to modify "other person", not spouse, parent or child. This holding is consistent with the liberal construction of exemption statutes in favor of debtors mandated by the Seventh Circuit. In re Barker, supra, 768 F.2d at 196.
Judge Lessen did not cite or discuss In re Rigdon, 133 B.R. 460 (Bkrtcy.S.D.Ill.1991), which is relied on by the Trustee and which addressed the issue in a detailed analysis. In Rigdon, the debtors, married adults, claimed an exemption in benefits payable by reason of the death of their fourteen-year old son. Determining that the statute required the parents to be dependent upon their son, the court stated:
The court in In re Schriar, 284 F.2d 471 (7th Cir.1960) interpreted an identical phrase found in the exemption provision of the Illinois Insurance Code. The issue was whether the debtor could claim as exempt the cash surrender value of life insurance policies payable to his nondependent adult children. Id. at 472. The court held that "dependent" modified both "child" and "parent" in the statute. Like the court in Schriar, this court finds that "dependent" modifies "child" and "parent" in § 12-1001(f) such that a child or parent must be dependent upon the insured in order to benefit from the exemption.
Quoting from the Schriar case in a footnote, the court stated:
It is a "cardinal rule" in construction of a statute that effect should be given, if possible, to each word, clause and sentence. The instant statute limits the beneficiaries "to a wife or husband of the insured, or to a child, parent or other person dependent upon the insured." The legislature used the words "or other person dependent upon the insured," not just or person dependent upon the insured. The word "other" cannot be discarded. The legislature clearly anticipated that child and parent were in the same class as "other person dependent upon the insured." The legislature must have intended that "dependent upon the insured" should modify child and parent, as well as "other person." Furthermore, this interpretation gives effect to the chief objectives of the exemptions laws, in that it protects the debtor in his subsistence, his family to whom he is obligated to support, and the public. Interpreting this statute liberally neither requires nor permits us to read into the statute that a beneficiary may be an adult son or daughter not dependent upon the debtor, where such meaning is simply not there.
*677 Schriar, 284 F.2d at 474 (citation omitted).
Turning to the issue of whether the debtors were actually dependent on their minor son for purposes of the exemption statute, the court noted the absence of a definition of "dependent" in the personal property exemption provisions of the Illinois Code of Civil Procedure and explored the meaning given the term by federal courts in the bankruptcy context. The court concluded:
This Court agrees with the reasoning and analysis used in [In re] Tracey [66 B.R. 63 (Bkrtcy.D.Md.1986)] and Dunbar [99 B.R. 320 (Bkrtcy.M.D.La.1989)]. Congress has not defined "dependent" in the Bankruptcy Code, and the Illinois legislature has not defined "dependent" for purposes of the exemption statute. Both legislative bodies, however, have intricately defined "dependent" in other statutes when they though such a definition was necessary. Since neither Congress nor the Illinois legislature has deemed it necessary to define "dependent" for purposes of the issue before the Court, the Court concludes that the ordinary and common meaning of the word will suffice. It should be noted that the purpose of the exemption statutes is to give the debtor enough property and income to subsist and obtain a fresh start. In the Matter of Barker, 768 F.2d 191, 195 (7th Cir.1985); In Re Van Iperen, 819 F.2d 189, 191 (8th Cir.1987); see In re Johnson, 57 B.R. 635, 639 (Bankr.N.D.Ill.1986); In re Dipalma, 24 B.R. 385, 392 (Bankr.D.Mass.1982). Such statutes are to be liberally construed in the debtor's favor. Barker, 768 F.2d at 196; Schriar, 284 F.2d at 473. With this in mind, the Court holds that a "dependent," for purposes of § 12-1001 of the Illinois Code of Civil Procedure, is an individual who is supported financially, either directly or indirectly by another, and who reasonably relies on such support. This is a broad definition, and a factual finding of dependency will thus have to be made, after a hearing, on a case by case basis.
Because the parties had not addressed this issue, the court scheduled a hearing to give the debtors an opportunity to show that they were financially dependent on their son prior to his death.
The court in Rigdon noted that the bankruptcy courts had adopted a broad definition of "dependent". One of the cases discussed by the court in Rigdon, supra, is In re Collopy, 99 B.R. 384 (Bkrtcy.S.D.Ohio 1989), which the court characterized as putting a "somewhat different twist" on the interpretation of dependency. Discussing the case, the court stated:
[I]n that case, the trustee objected to an exemption claimed by the Chapter 7 debtor. The debtor claimed the cash surrender value of a life insurance policy, of which her 85-year-old mother was the beneficiary, as exempt under an Ohio statute which exempted from the claims of creditors of the insured person any policy in which the beneficiary was "`any relative dependent upon such person.'" (Citation). The trustee argued that the beneficiary-mother was not dependent upon the debtor.
The parties in Collopy agreed that the debtor's mother was not financially dependent upon the debtor. The court emphasized, however, that the mother was "entirely dependent upon her daughter in a physical sense." Id. The mother had glaucoma, so the daughter provided "transportation for marketing, banking and medical attention." Id. The court stated it was "a fair inference that the purpose of the life insurance policy [was] to make some provision for the physical needs of the mother in the event that debtor should predecease her." Id. Applying the principle that exemption statutes are to be liberally construed in the debtor's favor, the court concluded:
[T]he word "dependent" [in the Ohio exemption statute] is not limited to financial dependence, but extends as well, at least in circumstances such as those present in this case, to a situation where the purpose of the insurance is to provide for a substitute means of caring for a dependent. To adopt the narrow interpretation of "dependent" urged by the trustee in this case would be to ignore the financial implications which *678 would follow in the event that the insured here died and the beneficiary collected the proceeds of the policy.
Id.
For the reasons stated in Rigdon, this Court agrees with that court's interpretation of the Illinois exemption provision. The provision is clearly based upon a dependency requirement. In the situation of a husband and a wife, it is a given that there is a mutual dependency and there was no need for the Illinois legislature to add that requirement to the provision in so many words. As to the relationship between parents and a child, at some point there is normally an emancipation, where the child begins to live an economically independent life. There would be no need to protect insurance proceeds in such a situation. It is only where the parent or the child is a dependent, similar to another class of relative or friend, who is dependent on the insured, that protection of insurance proceeds makes sense under the exemption provision.
The next issue to be decided is whether the Debtor's parents are financially dependent upon him. They are not. He is dependent upon them. His father is working and is earning a good salary, sufficient to support himself and his wife. There are certain additional expenses associated with the Debtor living with his parents. However, those expenses are being covered by the Debtor contributing all or part of his monthly disability payment towards them.
This Opinion is to serve as Findings of Fact and Conclusions of Law pursuant to Rule 7052 of the Rules of Bankruptcy Procedure.
See written Order.


                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 13 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS

                             FOR THE NINTH CIRCUIT

ROBERT ALAN ANTON,                               No. 10-16618

               Plaintiff - Appellant,            D.C. No. 1:05-cv-00412-OWW-
                                                 WMW
  v.

MENDEZ; et al.,                                  MEMORANDUM *

               Defendants - Appellees.

                    Appeal from the United States District Court
                        for the Eastern District of California
                    Oliver W. Wanger, District Judge, Presiding

                           Submitted September 27, 2011 **

Before:        SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.

       Robert Alan Anton, a California state prisoner, appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging violations

of his constitutional rights in connection with the use of force during an inmate

fight. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
district court’s dismissal for failure to exhaust, and for clear error its factual

determinations. Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009). We

affirm.

       The district court properly dismissed Anton’s excessive force claim for

failure to exhaust administrative remedies because Mendez offered evidence

showing that Anton did not properly file any grievances alleging excessive force

before initiating this action, and Anton did not effectively rebut this evidence. See

Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003) (“[D]efendants have the

burden of . . . proving the absence of exhaustion[,]” and “[i]n deciding a motion to

dismiss for failure to exhaust nonjudicial remedies, the court may look beyond the

pleadings and decide disputed facts.”); McKinney v. Carey, 311 F.3d 1198, 1199

(9th Cir. 2002) (per curiam) (requiring exhaustion prior to filing suit).

       The district court did not abuse its discretion in denying Anton’s motions for

reconsideration because Anton set forth no basis for reconsideration. See Sch.

Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir.

1993) (setting forth standard of review and grounds for reconsideration).

       Anton’s remaining contentions are unpersuasive.

       Anton’s request for discovery or, in the alternative, to supplement the record

is denied. See Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir.

                                             2                                       10-16618
1988) (“Papers not filed with the district court or admitted into evidence by that

court are not part of the clerk’s record and cannot be part of the record on

appeal.”).

      AFFIRMED.

                                           3                                   10-16618


793 So.2d 1057 (2001)
Isabella RODRIGUEZ, a minor, by and through her mother and natural guardian, Penny POSSO-RODRIGUEZ, and Henry Rodriguez, and Penny Posso-Rodriguez, individually, Appellants,
v.
Richard J. FEINSTEIN, M.D., and Richard J. Feinstein, M.D., P.A., Appellees.
Nos. 3D00-831, 3D99-2346.
District Court of Appeal of Florida, Third District.
July 25, 2001.
Rehearing and/or Rehearing and/or Certification Denied September 19, 2001.
*1058 Hersch & Talisman, and Patrice Talisman, Miami; and Spencer Marc Aronfeld, Coral Gables, for appellants.
O'Connor & Meyers, and David R. Cassetty, Coral Gables, for appellees.
Before SCHWARTZ, C.J., and SORONDO, and RAMIREZ, JJ.
Rehearing and/or Rehearing En Banc and/or Certification Denied September 19, 2001.
RAMIREZ, J.
Isabella Rodriguez, a minor born with a birth defect, appeals an order striking her experts, an adverse final summary judgment, and an order taxing costs, all of which were entered following a Frye/Ramirez hearing[1] in which the trial court determined that her expert testimony was not based on generally accepted scientific principles. Our de novo review determines that the methodology used by plaintiffs' experts is generally accepted in the scientific community. Their conclusion that exposure in utero to the drug prescribed by Dr. Richard Feinstein caused Isabella's birth defect is therefore admissible. Thus, we reverse.
Dr. Feinstein treated Penny Posso Rodriguez for a toenail fungus infection by prescribing Sporanox. During her treatment, Rodriguez learned that she was pregnant and discontinued the use of the drug. Her daughter, Isabella Rodriguez, was subsequently born with a malformation in her right eye diagnosed as unilateral persistent hyperplastic primary vitreous (PHPV). Rodriguez and her husband then sued Dr. Feinstein and his medical association alleging negligence in prescribing Sporanox which resulted in Isabella's birth defect.
At the Frye hearing on the expert testimony, Rodriguez presented three witnesses: Dr. Seemanthini Hariharan, an obstetrician/gynecologist and maternal fetal medicine specialist; Dr. Jerry Sebag, an ophthalmologist and leading expert on the structure, function and pathology of the vitreous in the eye;[2] and Dr. Ronald Haun, a board certified geneticist on the faculty at the University of Miami. The witnesses testified that the mother's exposure to Sporanox during pregnancy more likely than not caused her daughter's PHPV. They reached this conclusion based on (1) the timing and duration of the exposure to the drug; (2) the lingering effect of the drug in the system even after the patient stops taking it due to the drug's lipophilic aspect (attraction to the fatty tissue); (3) the drug's molecular weight which is small enough to be transferred through the placenta; (4) the Federal Drug Administration's classification of the drug as a category C drug, teratogenic[3] in animals; (5) the manufacturer's package insert which warns against taking this particular drug during pregnancy; (6) animal studies which have shown the drug to cause birth defects; and (7) the statistical *1059 increase in birth defects according to FDA adverse reaction reports. They testified that it is generally accepted in the scientific community to rely on all of these factors in arriving at an opinion.
The witnesses testified in detail about their opinions as they related to the facts of the case. Dr. Hariharan reviewed the mother's medical records and eliminated any occupational or other exposure to drugs or sprays which could be teratogenic. He explained that Isabella's birth defect was an extremely rare anomaly making it very difficult to believe that the birth defect could have occurred coincidentally in a Sporanox-exposed embryo.
Dr. Jerry Sebag, testified that the ingestion of the drug and its lingering effects coincided with fetal development of the secondary vitreous, which is clear, and normally replaces the primary vitreous, which is filled with blood vessels. He testified that the animal studies revealed teratogenicity in rats which caused major skeletal defects, and that there is a strong correlation between skeletal abnormalities and vitreous abnormalities due to the commonality of the collagen involved in the formation of both those structures.
Plaintiff's final witness was Dr. Ronald Haun, who testified that there was a statistically significant rate of congenital abnormalities making it improbable that PHPV was caused by something other than Sporanox. He relied on the affidavit of Gerald Briggs, who authored a textbook on the effect of drugs on pregnancy and lactation, and concluded that there is data suggesting that Sporanox produces birth defects in humans.
Dr. Feinstein presented two witnesses: Dr. Aubrey Milunsky, a board certified doctor in internal medicine, pediatrics and clinical genetics; and Dr. Charles Nichols, a board certified ophthalmologist. Dr. Milunsky testified that there is a genetic component to the development of PHPV. He stated that extrapolation from a collagen defect in one area of the body to a defect in another, or from limb defects to collagen, was not generally accepted in the scientific community. He was critical of the plaintiffs' experts for relying on animal studies because, in his opinion, such studies have no scientific relevance to the issue of whether Sporanox can cause PHPV in humans. He felt that Dr. Sebag is the only person who holds the opinion that the study with mice can be extrapolated in such a manner. He also stated that there is no study to support the proposition that Sporanox can cross the placental barrier. He admitted that the lines of reasoning used by plaintiffs' experts to reach their conclusions, other than reliance on the FDA reports, were generally accepted in the scientific community to approach the question of teratogenicity.
Dr. Nichols testified that PHPV is a vascular disorder, not a disorder of the vitreous. He was also critical of reliance by the plaintiffs' experts on rodent studies and the extrapolation of musculoskeletal defects in rats to human eye defects. But he, too, admitted that all the lines of reasoning used by the plaintiffs' experts were generally accepted by the scientific community as a means of relating a birth defect to a particular drug.
The trial court determined that the plaintiffs' expert testimony on causation was inadmissible and struck the expert testimony because the conclusions reached were not based upon generally accepted scientific principles.[4]
The only issue in this case is whether the scientific evidence is "generally *1060 accepted" within the relevant scientific community. Application of de novo standard of review is appropriate when a Frye issue is involved. See Brim v. State, 695 So.2d 268, 274 (Fla.1997); Berry v. CSX Transp., Inc., 709 So.2d 552, 557 (Fla. 1st DCA 1998) (holding that the appropriate standard of review of a Frye issue is de novo).
The proponent of expert testimony has the burden of proving by a preponderance of the evidence the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case. See Murray v. State, 692 So.2d 157, 161 (Fla.1997); Ramirez v. State, 651 So.2d 1164, 1168 (Fla.1995). Of the four-step process outlined in Ramirez, the trial court held that the plaintiffs had not met the second criteria: "whether the expert's testimony is based on a scientific principle or discovery that is `sufficiently established to have gained general acceptance in the particular field in which it belongs.'" Id. at 1167 (quoting Frye, 293 F. at 1014). In Hadden v. State, 690 So.2d 573, 576 (Fla. 1997), the Florida Supreme Court further explained: "[t]his test requires that the scientific principles undergirding this evidence be found by the trial court to be generally accepted by the relevant members of its particular field." In language especially applicable to this case, the First District in Berry stated that "when the expert's opinion is well-founded and based upon generally accepted scientific principles and methodology, it is not necessary that the expert's opinion be generally accepted as well." Berry, 709 So.2d at 567 (emphasis added).
The trial court relied heavily on this Court's recent case of E.I. DuPont De Nemours & Co., Inc. v. Castillo, 748 So.2d 1108 (Fla. 3d DCA 2000), in which a pregnant woman was exposed to an agricultural fungicide (Benlate) when it was sprayed on a field and later gave birth to a child with a rare birth defect. The expert testified that fetal exposure to benomyl (an active ingredient in the fungicide) at a concentration of twenty parts per billion in the maternal bloodstream would cause microphthalmia in humans. He based his conclusion on two sources: 1) rat gavage studies, and 2) laboratory experiments on human and rat cells. The defendant objected to this testimony on the ground that the expert's methodology for determining whether and at what level Benlate could cause birth defects in humans was not generally accepted in the scientific community and thus the testimony was inadmissible. The court concluded that where "plaintiffs wish to establish a substance's teratogenicity in human beings based on animal and in vitro studies, the methodology used in the studies, including the method of extrapolating from the achieved results, must be generally accepted in the relevant scientific community." Id. at 1120.
In this case, the cross-examination of the plaintiffs' experts and the testimony of the defense experts may have created "two legitimate but conflicting scientific views." Id. at 1118. However, to involve judges in an evaluation of the acceptability of an expert's opinions and conclusions would convert judges into factfinders to an extent not envisioned by Frye, Ramirez, Castillo, or any other Florida case. To the contrary:
Although the trial court must analyze the science and not merely the qualifications, demeanor or conclusions of experts, the court need not weigh or choose between two legitimate but conflicting scientific views. The court instead must assure itself that the opinions are based on relevant scientific methods, processes, and data, and not upon an expert's mere speculation.... [I]t is important to emphasize that the *1061 weight to be given to stated scientific theories, and the resolution of legitimate but competing scientific views, are matters appropriately entrusted to the trier of fact.
Berry, 709 So.2d at 569 n. 14.
Dr. Feinstein's own experts admitted that all the lines of reasoning used by the plaintiffs' experts are generally accepted by the scientific community as a means of establishing the teratogenicity of a particular drug. Their disagreement was only with the plaintiffs' experts' conclusions. Therefore, because the methodology used by plaintiffs' experts is generally accepted by the scientific community, we hold that the plaintiffs' scientific evidence should not have been excluded.
Reversed and remanded.
NOTES
[1]  Frye v. United States, 293 F. 1013 (D.C.Cir. 1923); Ramirez v. State, 651 So.2d 1164 (Fla. 1995).
[2]  The vitreous is the jell that fills the center of the eye. Its function is to maintain a clear medium through which light can traverse the eye once focused by the structure of the eye.
[3]  Teratogenic means "of, relating to, or causing malformations of an embryo or a fetus." THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, 3d ed. (1996).
[4]  Summary judgment was subsequently entered in favor of Dr. Feinstein. The trial court also taxed the costs of the deposition transcripts and expert witness fees against Rodriguez in the amount of $3,518.80.


71 F.3d 882
John Deere Ins. Co.v.Yeager***
NO. 95-2101
United States Court of Appeals,Eleventh Circuit.
Nov 22, 1995

1
Appeal From:  M.D.Fla., No. 93-00062-CIV-OC-10

2
AFFIRMED.

*
 Fed.R.App.P. 34(a);  11th Cir.R. 34-3

**
 Local Rule 36 case


931 F.2d 55Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 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 Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Robert Allen CARTER, Defendant-Appellant.
No. 91-6519.
United States Court of Appeals, Fourth Circuit.
Submitted April 8, 1991.Decided April 26, 1991.As Amended May 6, 1991.

Appeal from the United States District Court for the District of South Carolina, at Columbia.  Joe F. Anderson, Jr., District Judge.  (CR-88-368, CA-90-1816-3)
Robert Allen Carter, appellant pro se.
John M. Barton, Office of the United States Attorney, Columbia, S.C., for appellee.
D.S.C.
AFFIRMED.
Before MURNAGHAN, SPROUSE and NIEMEYER, Circuit Judges.
PER CURIAM:

1
Robert Allen Carter appeals from the district court's order refusing relief under 28 U.S.C. Sec. 2255.  Our review of the record and the district court's opinion accepting the recommendation of the magistrate judge discloses that this appeal is without merit.  Accordingly, we affirm on the reasoning of the district court.  United States v. Carter, CR-88-368, CA-90-1816-3 (D.S.C. Jan. 4, 1991).     We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

2
AFFIRMED.


985 A.2d 646 (2009)
200 N.J. 547
BRADY
v.
PULGAR.
No. C-446 September Term 2009, 64,868
Supreme Court of New Jersey.
December 16, 2009.
Petition for Certification Denied.


    15-2310
    Howard G. Gold

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

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

                  At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 16th day of June, two thousand sixteen.

    PRESENT:
                     ROSEMARY S. POOLER,
                     ROBERT D. SACK,
                     GERARD E. LYNCH,
                              Circuit Judges.
    _____________________________________________________

    In the Matter of: Howard G. Gold, Arlene S.
    Gold,

                      Debtors.
    _____________________________________

    Howard G. Gold,

                          Debtor - Appellant,

            v.                                       15-2310

    William K. Harrington, United States Trustee,

                      Appellee.
    ______________________________________________________

    FOR DEBTOR-APPELLANT:                            Peter L. Ressler, New Haven, CT.
FOR APPELLEE:                                                   Ramona D. Elliott, Deputy Director/General
                                                                Counsel; P. Matthew Sutko, Associate
                                                                General Counsel; Robert J. Schneider, Jr.,
                                                                Trial Attorney, Department of Justice,
                                                                Executive Office for United States Trustees,
                                                                Washington, DC; William K. Harrington,
                                                                United States Trustee for Region 2; Kim L.
                                                                McCabe, Assistant United States Trustee;
                                                                Steven E. Mackey, Trial Attorney,
                                                                Department of Justice, Office of the United
                                                                States Trustee, New Haven, CT.

         Appeal from a judgment of the United States District Court for the District of Connecticut

(Bolden, J.).

         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

         Peter L. Ressler1 challenges the district court’s judgment affirming the bankruptcy court’s

order awarding him attorney’s fees. We assume the parties’ familiarity with the underlying facts,

the procedural history of the case, and the issues on appeal.

         We review a bankruptcy court’s award of attorney’s fees for abuse of discretion. See In re

Bayshore Wire Prods. Corp., 209 F.3d 100, 103 (2d Cir. 2000). A bankruptcy court abuses its

discretion when “(1) its decision rests on an error of law (such as application of the wrong legal

principle) or a clearly erroneous factual finding, or (2) its decision–though not necessarily the

product of a legal error or a clearly erroneous factual finding–cannot be located within the range of

permissible decisions.” Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir. 2001) (footnotes

omitted).

1
  Although the notice of appeal (and therefore the caption) lists Howard G. Gold as the appellant, Ressler was the
person aggrieved by the district court’s order. See Fed. R. App. P. 3(c). However, because the Appellee has
expressly waived any arguments under Fed. R. App. P. 3(c) and it is clear that Ressler intended to be the party to this
appeal, Ressler’s appeal will not be dismissed for lack of jurisdiction. Cf. Agee v. Paramount Commc’ns, Inc., 114
F.3d 395, 399-400 (2d Cir. 1997).
       An independent review of the record and relevant authority reveals that the district court

properly affirmed the bankruptcy court’s order. The record amply supports the district court’s

conclusions bankruptcy court acted well within its discretion when it determined that Ressler

(1) lacked the authority to represent the estate of Arlene Gold after the appointment of a new

executor who did not retain Ressler to represent Arlene Gold’s estate; and (2) failed to adequately

record his time, had a conflict of interest, and violated the court’s rules governing compensation

requests. See 11 U.S.C. § 330(a)(1)(A), (3) (court may award reasonable compensation for an

attorney’s “actual, necessary services rendered,” “taking into account all relevant factors”); see

also id. § 330(a)(2) (court may award “compensation that is less than the amount of compensation

that is requested”). We further note that Appellee alerted this Court that, after briefing in this

appeal was completed, Ressler resigned from the Connecticut bar. If the Appellee believes that

Ressler’s resignation affects his ability to recover fees, it must raise that argument in the

bankruptcy court in the first instance.

       We have examined the remainder of Ressler’s arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court for substantially the same

reasons as stated in its June 18, 2015 decision.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk

                                                   3