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1. This appeal arises out of a judgment and order dated 27th August, 2008 passed by the High Court of Uttarakhand at Nainital whereby Criminal Appeal No.298 of 2001 filed by the appellant has been partly allowed. The High Court has while setting aside the conviction and sentence awarded to the appellant under Section 302 IPC upheld his conviction for offences punishable under Sections 171, 201 and 420 IPC and the sentence awarded by the trial Court for these offences. The High Court has further convicted the appellant for an offence punishable under Section 365 IPC and sentenced him to undergo rigorous imprisonment for a period of seven years on that count.
2. The facts giving rise to the arrest and eventual conviction of the appellant have been set out by the High Court at length. We need not, therefore, recapitulate the same over again except to the extent it is absolutely necessary to do so for the disposal of this appeal. Suffice it to say that the appellant according to the prosecution dishonestly induced the complainant Dr. Mohd. Alam (P.W.2) at Dehradun to deliver his car bearing registration No.URM 2348 and a sum of Rs.15,000/- and at about 1.30 p.m. on the same day abducted Abdul Mabood, brother of the complainant with the intention to commit his murder.
The prosecution case further is that sometime between 1.7.1987 and 2.7.1987, Abdul Mabood was murdered near a canal on Kairana Panipat Road in District Panipat and with a view to cause disappearance of any signs of the crime committed by him threw the dead body of Abdul Mabood in the Canal. A report for the alleged commission of offences under Sections 406, 419, 420 and 365 IPC was lodged by Dr. Mohd. Alam on 6.7.1987 at Police Station Dalanwala based on which Crime No.185/1987 was registered and the investigation undertaken by Muzaffar Ali - Sub-Inspector, examined as PW17 at the trial.
In the course of investigation the said witness took the appellant into custody, recovered the car bearing Registration No.U.R.M.2348 from Panipat an deffected seizure of some letters allegedly written by him. Further investigation of the case was then handed over to Mr. J.P. Sharma (P.W.18)who completed the same and submitted a charge sheet against the appellant for offences punishable under Sections 364, 302, 201, 420, 170 and 171I.P.C.
3. The appellant was in due course committed to the Court of Sessions to face trial before the III Additional Sessions Judge, Dehradun who framed charges against the appellant to which the appellant pleaded not guilty and claimed to be tried.
4. At the trial Court the prosecution examined P.W. 1 Raees Ahmad, P.W.2Dr. Mohd. Alam, also complainant in the case; P.W.3 Hari Om, P.W.4 Jiledar Singh, P.W.5 Hizfur Rahman the brother of Abdul Mabood-deceased; P.W.6Anees Ahmad, P.W.7 Akash Garg, P.W.8 Badloo Ram, P.W.9 Jai Bhagwan, P.W.10Ajit Chopra, and nine other witnesses including P.W.17 Muzaffar Ali andP.W.18 J. P. Sharma who concluded the investigation and P.W.19 Ramanand Pandey, another Scientific Officer of Forensic Laboratory, Agra. The appellant examined D.W.1 Yashveer Singh, his brother and D.W.2 Constable Om Prakash, in his defence.
5. Appreciation of evidence thus assembled at the trial led the trial Court to the conclusion that the appellant had committed offences punishable under the provisions with which he stood charged and accordingly sentenced him to life imprisonment for the offence of murder besides a fine of Rs.3,000/-. For the remaining offence he was sentenced to undergo rigorous imprisonment ranging between two months to five years with the direction that all the sentences shall run concurrently.
6. Aggrieved by the judgment and order passed by the trial Court the appellant preferred an appeal to the High Court of Allahabad from where the same was transferred to the High Court of Uttarakhand at Nainital in terms of Section 35 of the U.P. Re-organisation Act, 2000. The transferee High Court allowed the appeal but only in part and to the extent that the appellant was acquitted of the charge of murder while his conviction for offences under Sections 171, 201 and 420 was maintained. The High Court also altered the conviction from Section 364 IPC to Section 365 IPC and sentenced him to undergo rigorous imprisonment for a period of seven years on that count. The present appeal assails the correctness of the said order of the High Court.
7. When this appeal came up for hearing before S.B. Sinha and Cyriac Joseph, JJ. on 24th October, 2008, this Court not only issued notice to the State in the appeal but also directed notice to the appellant to show cause why the order passed by the High Court acquitting the appellant under Section 302 may not be set aside. At this stage the appellant made a prayer for withdrawal of the SLP filed by him against his conviction which prayer was declined by this Court by order dated 5th January, 2009 on the ground that the Court had issued a show cause notice for reversal of the appellant's acquittal under Section 302 IPC.
8. We have heard learned counsel for the parties at some length who have taken us through the evidence on record. The only question that was argued before us with some amount of seriousness on both sides was whether the High Court was justified in acquitting the appellant of the charge of murder held proved against him by the trial Court. There was no attempt made by the counsel for the appellant to question the correctness of the findings recorded by the trial Court in so far as the commission of offences punishable under other provisions of the IPC were concerned. As seen above, the appellant had sought withdrawal of the SLP which implied that he did not question the correctness of the sentence recorded by the High Court in so far as other offences were concerned.
That prayer was rejected which effectively kept the SLP alive, but no serious attempt was made to pursue the challenge against the order passed by the High Court in so far as the conviction recorded by the said Court under other offences was concerned. We are not in that view of the matter called upon to examine the correctness of the conviction of the appellant for other offences. Even otherwise the findings recorded by the trial Court and affirmed by the High Court are in our opinion supported by evidence in so far as commission of other offences are concerned. There is no miscarriage of justice in the appreciation of the evidence or recording of those finding to call for our interference.
" In other words, we would take it that the corpus delicti, i.e., the dead-body of the victim was not found in this case. But even on that assumption, the question remains whether the other circumstances established on record were sufficient to lead to the conclusion that within all human probability, she had been murdered by Rama Nand appellant? It is true that one of the essential ingredients of the offence of culpable homicide required to be proved by the prosecution is that the accused caused the death" of the person alleged to have been killed. 28. This means that before seeking to prove that the accused is the perpetrator of the murder, it must be established that homicidal death has been caused.
Ordinarily, the recovery of the dead-body of the victim or a vital part of it, bearing marks of violence, is sufficient proof of homicidal death of the victim. There was a time when under the old English Law, the finding of the body of the deceased was held to be essential before a person was convicted of committing his culpable homicide. "I would never convict", said Sir Mathew Hale, "a person of murder or manslaughter unless the fact were proved to be done, or at least the body was found dead". This was merely a rule of caution, and not of law. But in those times when execution was the only punishment for murder, the need for adhering to this cautionary rule was greater. Discovery of the dead-body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. Indeed, very many cases are of such a nature where the discovery of the dead-body is impossible.
A blind adherence to this old "body" doctrine would open the door wide open for many a heinous murderer to escape with impunity simply because they were cunning and clever enough to destroy the body of their victim. In the context of our law, Sir Hale's enunciation has to be interpreted no more than emphasising that where the dead-body of the victim in a murder case is not found, other cogent and satisfactory proof of the homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct ocular account of an eye-witness, or by circumstantial evidence, or by both.
But where the fact of corpus delicti, i.e. 'homicidal death' is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. Even so, this principle of caution cannot be pushed too far as requiring absolute proof. Perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth. That is why under Section 3, Evidence Act, a fact is said to be "proved", if the Court considering the matters before it, considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned."
10. To the same effect is the decision in Ram Chandra & Ram Bharosey v.State of Uttar Pradesh AIR 1957 SC 381, where this Court said: "It is true that in law a conviction for an offence does not necessarily depend upon the corpus delicti being found. There may be reliable evidence, direct or circumstantial, of the commission of the murder though the corpus delicti are not traceable.
11. "Reference may also be made to State of Karnataka v. M.V. Mahesh(2003) 3 SCC 353 where this Court observed: "It is no doubt true that even in the absence of the corpus delicti it is possible to establish in an appropriate case commission of murder on appropriate material being made available to the court. In this case no such material is made available to the court.
12. "In Lakshmi and Ors. v. State of Uttar Pradesh (2002) 7 SCC 198 thelegal position was reiterated thus : "16. Undoubtedly, the identification of the body, cause of death and recovery of weapon with which the injury may have been inflicted on the deceased are some of the important factors to be established by the prosecution in an ordinary given case to bring home the charge of offence under Section 302 I.P.C. This, however, is not an inflexible rule. It cannot be held as a general and broad proposition of law that where these aspects are not established, it would be fatal to the case of the prosecution and in all cases and eventualities, it ought to result in the acquittal of those who may be charged with the offence of murder. It would depend on the facts and circumstances of each case. A charge of murder may stand established against an accused even in absence of identification of the body and cause the death.
13. "In the absence of corpus delicti what the court looks for is clinching evidence that proves that the victim has been done to death. If the prosecution is successful in providing cogent and satisfactory proof of the victim having met a homicidal death, absence of corpus delicti will not by itself be fatal to a charge of murder. Failure of the prosecution to assemble such evidence will, however, result in failure of the most essential requirement in a case involving a charge of murder. That is precisely the position in the case at hand. There is no evidence either direct or circumstantial about Abdul Mabood having met a homicidal death. The charge of murder levelled against the appellant, therefore, rests on a rather tenuous ground of the two having been last seen together to which aspect we shall presently advert when we examine whether the two being last seen together is proved as a circumstance and can support a charge ofmurder.
14. The second aspect to which we must straightaway refer is the absence of any motive for the appellant to commit the alleged murder of Abdul Mabood. It is not the case of the prosecution that there existed any enmity between Abdul Mabood and the appellant nor is there any evidence to prove any such enmity. All that was suggested by learned counsel appearing for the State was that the appellant got rid of Abdul Mabood by killing him because he intended to take away the car which the complainant-Dr. Mohd. Alam had given to him.
That argument has not impressed us. If the motive behind the alleged murder was to somehow take away the car, it was not necessary for the appellant to kill the deceased for the car could be taken away even without physically harming Abdul Mabood. It was not as though Abdul Mabood was driving the car and was in control thereof so that without removing him from the scene it was difficult for the appellant to succeed in his design. The prosecution case on the contrary is that the appellant had induced the complainant to part with the car and a sum of Rs.15,000/-.The appellant has been rightly convicted for that fraudulent act which conviction we have affirmed.
Such being the position, the car was already in the possession and control of the appellant and all that he was required to do was to drop Abdul Mabood at any place en route to take away the car which he had ample opportunity to do during all the time the two were together while visiting different places. Suffice it to say that the motive for the alleged murder is as weak as it sounds illogical to us. It is fairly well-settled that while motive does not have a major role to play in cases based on eye-witness account of the incident, it assumes importance in cases that rest entirely on circumstantial evidence. [See Sukhram v. State of Maharashtra (2007) 7 SCC 502, Sunil Clifford Daniel(Dr.) v. State of Punjab (2012) 8 SCALE 670, Pannayar v. State of Tamil Nadu by Inspector of Police (2009) 9 SCC 152]. Absence of strong motive in the present case, therefore, is something that cannot be lightly brushed aside.
15. Coming then to the circumstances which according to the prosecution prove the charge of murder against the appellant, all that we have is that the appellant and Abdul Mabood, the deceased, had left in a car bearing registration No.URM 2348 from No.1, Circular Road, Police Station Dalanwala, Dehradun and that on 2nd July, 1986 the appellant had gone to the house of one Akash Garg P.W.7 accompanied by a boy whom the witness identified as the deceased-Abdul Mabood. The deposition of PW8 Badlu Ram, posted as a Peon at Naval Cinema, Panipat, is also to the same effect.
According to the said witness the appellant had gone to the cinema accompanied by a boy between 20-22 years of age whom he recognised as the alleged deceased-Abdul Mabood on the basis of a photograph shown to him at the trial. The only other evidence which has any relevance to the circumstances that led to the disappearance of Abdul Mabood is the deposition of Tejveer Singh P.W.11, resident of Budha Kheri, Panipat, a businessman by occupation, who claims to have seen the appellant with Abdul Mabood when the two visited his farm. The boy was identified by the witness by reference to a photograph shown to him as the alleged deceased-Abdul Mabood. According to the witness the appellant had gone away with his companion boy and when he returned at night he was all alone.
He also appeared troubled and his clothes were stained with dust and sand. The appellant asked for a towel to take a bath and explained that his car had broken down and while trying to put it in order his clothes got soiled. When the witness asked him about the boy accompanying the appellant the latter is alleged to have explained that he had stayed back with his friend. The deposition of PW10 Ajit Chopra who is also a resident of Panipat proved that the appellant had visited his residence in the first week of July, 1987 and had left his car at Naval Talkies which was then brought to his factory by their driver Jai Bhagwan examined as PW9.
The trial Court on the basis of the above evidence held that the deceased-Abdul Mabood had been taken by the appellant to Panipat and disposed of by him on the basis that the two were last seen together. The trial Court had, however, found no motive or evidence for the alleged murder of the deceased-Abdul Mabood. The High Court took a contrary view and found that the charge of murder could not be held to be proved on the basis of the evidence on record. The High Court was, in our opinion, correct in arriving at that conclusion. It is true that the tell-tale circumstances proved on the basis of the evidence on record give rise to a suspicion against the appellant but suspicion howsoever strong is not enough to justify conviction of the appellant for murder.
The trial Court has, in our opinion, proceeded more on the basis that the appellant may have murdered the deceased-Abdul Mabood. In doing so the trial Court over looked the fact that there is a long distance between 'may have' and 'must have' which distance must be traversed by the prosecution by producing cogent and reliable evidence. No such evidence is unfortunately forthcoming in the instant case. The legal position on the subject is well settled and does not require any reiteration. The decisions of this Court have on numerous occasions laid down the requirements that must be satisfied in cases resting on circumstantial evidence. The essence of the said requirement is that not only should the circumstances sought to be proved against the accused be established beyond a reasonable doubt but also that such circumstances form so complete a chain as leaves no option for the Court except to hold that the accused is guilty of the offences with which he is charged.
The disappearance of deceased-Abdul Mabood in the present case is not explainable as sought to be argued before us by the prosecution only on the hypothesis that the appellant killed him near some canal in a manner that is not known or that the appellant disposed of his body in a fashion about which the prosecution has no evidence except a wild guess that the body may have been dumped into a canal from which it was never recovered.
16. In Mohibur Rahman and Anr. v. State of Assam (2002) 6 SCC 715, this Court held that the circumstance of last seen does not by itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of each case. There may however be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide.
Similarly in Arjun Marik and Ors. V. State of Bihar 1994 Supp (2) SCC 372,this Court reiterated that the solitary circumstance of the accused and victim being last seen will not complete the chain of circumstances for the Court to record a finding that it is consistent only with the hypothesis of the guilt of the accused. No conviction on that basis alone can, therefore, be founded. So also in Godabarish Mishra v. Kuntala Mishraand Another (1996) 11 SCC 264, this Court declared that the theory of last seen together is not of universal application and may not always be sufficient to sustain a conviction unless supported by other links in the chain of circumstances.
In Bharat v. State of M.P (2003) 3 SCC 106; two circumstances on the basis whereof the appellant had been convicted were(i) the appellant having been last seen with the deceased and (ii) Recovery of ornaments made at his instance. This Court held: "Mere non-explanation cannot lead to the proof of guilt against the appellant. The prosecution has to prove its case against the appellant beyond reasonable doubt. The chain of circumstances, in our opinion, is not complete so as to sustain the conviction of the appellant.
17. "We may also refer to State of Goa v. Sanjay Thakran and Anr. (2007) 3SCC 755 where this Court held that in the absence of any other corroborative piece of evidence to complete the chain of circumstances itis not possible to fasten the guilt on the accused on the solitary circumstance of the two being seen together. Reference may also be made to Bodh Raj alias Bodha and Ors. v. State of Jammu and Kashmir (2002) 8 SCC 45where this Court held : "The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.
It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.
18. "Finally in Jaswant Gir v. State of Punjab (2005) 12 SCC 438, this Court held that it is not possible to convict Appellant solely on basis of 'last seen' evidence in the absence of any other links in the chain of circumstantial evidence, the Court gave benefit of doubt to accused persons.
19. Abdul Mabood-deceased was a young, physically stout boy aged 20-22years. In the absence of any suggestion as to how and where he was done to death it is difficult to infer anything incriminating against the appellant except a strong suspicion when he returned at night to the farm of Tajveer Singh with soiled clothes. The explanation given by the appellant for his clothes getting soiled can also not said to be so absurd that one could straightway reject and count the same as an incriminating circumstance so conclusive in nature that the Court could presume that they were explainable only on the hypothesis that the appellant had committed the crime alleged against him.
20. Suffice it to say that even if we take the most charitable liberal view in favour of the prosecution, all that we get is a suspicion against the appellant and no more. The High Court was in that view justified in setting aside the order passed by the trial Court and acquitting the appellant of the offence of murder under Section 302 IPC. The order passed by the High Court deserves to be affirmed giving to the appellant the benefit of doubt. We accordingly dismiss the appeal filed by the appellant and discharge the notice of show-cause issued to him.

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Earlier this summer, the Third and Tenth Circuits heard challenges to the “contraception and abortion mandate” by the Department of Health and Human Services (HHS). The mandate, which went into effect in 2012 under the Patient Protection and Affordable Care Act (PPACA), dictates that employers must include coverage for contraceptive and abortion-inducing drugs in employee health care plans.
To date, three Circuits have examined the constitutionality of the HHS mandate: the Tenth Circuit, in Hobby Lobby Stores, Inc. v. Sebelius (June 27, 2013); the Third Circuit, in Conestoga Wood Specialties Corporation v. Sebelius (July 26, 2013); and most recently, the Sixth Circuit in Autocam Corporation v. Sebelius (September 17, 2013). The tally stands two to one in favor of the HHS mandate, with the Third and Sixth Circuits reaching similar judgments in their respective cases.
In Hobby Lobby Stores, Inc. v. Sebelius, the religious owners of Hobby Lobby claimed that being forced to provide coverage for abortifacients––abortion-causing drugs––violated the tenets of their Christian faith. Contrary to its sister courts, the Tenth Circuit panel held that Hobby Lobby was entitled to bring claims under the Religious Freedom Restoration Act, and that Hobby Lobby had Article III standing to sue.
In contrast to the Tenth Circuit, the Third Circuit, joined just days ago by the Sixth Circuit, arrived at a quite different conclusion. In Conestoga Wood Specialties Corporation v. Sebelius, the panel denied the Mennonite owners of a cabinet manufacturing company injunctive relief against the HHS mandate. Circuit Justice Marjorie Rendell’s majority opinion argued that the plaintiffs are unlikely to succeed in their challenge of the PPACA. She further concluded that corporations cannot practice religion in the way individuals can. Therefore, corporate bodies aren't awarded protection under the Free Exercise Clause.
Joining the Third Circuit last week, the Sixth Circuit ruled on the case of Autocam Corporation v. Sebelius. “Autocam” (a company encompassing two non-profit, secular corporations controlled by the Kennedy family) brought suit against the HHS for the contraceptive mandate, claiming it forced them to violate Catholic doctrine. Similar to the Third Circuit’s ruling, the Sixth Circuit held that Autocam’s claims should be dismissed on account of the company not being a “person” capable of holding religious beliefs.
An issue common to all three cases was the Religious Freedom Restoration Act (RFRA). A federal law aimed at protecting free religious exercise, the RFRA provides a claim for individuals and religious organizations who find themselves victims of federal laws that substantially constrain their religious practices. The Sixth Circuit argued that the legislative history of the RFRA made no mention of for-profit corporations, a fact the panel took as sufficient evidence to prove Congress did not intend “persons” to encompass corporations.
After asserting that for-profit corporations such as Autocam are not “persons” in relation to the RFRA, the court turned to Autocam’s next argument, which concerned the decision in Citizens United v. Federal Election Commission. Because Citizens United recognized some First Amendment rights for corporations, Autocam argued that, consequently, all First Amendment rights should be extended to said entities.
The Sixth Circuit panel ultimately found this argument unconvincing, positing that the Free Speech Clause and the Free Exercise Clause of the First Amendment have historically been interpreted very differently. In fact, two completely separate bodies of precedent deal with the two clauses. And for this reason, the Sixth Circuit found that rights afforded to corporations by the Free Speech Clause do not automatically render true the assertion that Autocam is a person capable of exercising religion.
Another issue at hand in all three cases concerns the shareholder standing rule. The shareholder standing rule prevents corporate shareholders from bringing claims intended to redress injuries to their corporation. In Autocam, for example, the Sixth Circuit ruled that the shareholder standing rule barred the Kennedys from raising a RFRA claim because they were legally tied to Autocam.
The Sixth Circuit’s argument rested on well-established doctrines of corporate separation. They wrote, “[t]he Kennedys’ actions with respect to Autocam are not actions taken in an individual capacity, but as officers and directors of the corporation.” This conclusion, the panel ruled, barred the Kennedys from bringing RFRA claims in their individual capacities as well.
Just this past Thursday, the U.S. Supreme Court agreed to hear oral arguments on Hobby Lobby, responding to the federal government’s petition for a writ of certiorari––or petition for judicial review by the Court. Hobby Lobby has until October 21 to file a response, according to the case docket. Given the complex legal matters involved, the growing Circuit split with the Sixth Circuit’s recent ruing, and the greater social issues at stake, the Court’s ruling on Hobby Lobby is something to keep an eye on in the coming months.

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The Fourth District Court of Appeals recently reaffirmed that in order to maintain a claim for legal malpractice, one must be in privity with the attorney or law firm. See Arch Ins. Co. v. Kubicki Draper, LLP, 4D17-2889, 2019 WL 318466, at *3 (Fla. 4th DCA Jan. 23, 2019. This concept has long been established in Florida, which is highlighted by two Florida Supreme Court cases, which held that “[a]n attorney’s liability for negligence in the performance of his or her professional duties is limited to clients with whom the attorney shares privity of contract.” See generally Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 612 So. 2d 1378, 1379 (Fla. 1993) and Angel, Cohen & Rogovin v. Oberon Inv., N.V., 512 So. 2d 192, 194 (Fla. 1987). The concept of privity in order to have standing to bring a legal malpractice claim, is extremely important where there exists contractual privity between an attorney/law firm and an insured but no privity of contract between the attorney/law firm and the insurance carrier.
Currently, there are no cases in Florida that recognize an attorney-client duty owed by a defense firm to an insurance carrier where the law firm is hired to represent an insured for an alleged legal malpractice claim. Yet, in a recent line of Florida Federal Court cases, there appears to be a push towards expanding the concept of strict privity by permitting an insurer to pursue a claim of malpractice against the attorney/law firm hired to represent their insured. Specifically, in Hartford Ins. Co. of Midwest v. Koepell, the Court held that “. . . this Court guesses that Florida courts would extend the strict privity exception and recognize an insurer’s legal malpractice claim against an attorney retained to represent its insured.” 629 F. Supp. 2d 1293, 1301 (M.D. Fla. 2009). In Koeppel, while the Court acknowledged there is no controlling Florida precedent on this issue, in an effort to permit the carrier to sustain a cause of action, speculated that there should be an exception to the concept of strict privity. Additionally, the Court in Nova Cas. Co. v. Santa Lucia, went one step further in saying since neither Florida appellate courts nor the Supreme Court of Florida have ruled on this issue, it was “forced to predict how the Florida courts would rule if they were presented with the issue” specifically finding an exception to strict privity. 809CV1351T30, 2010 WL 3942875, at *2 (M.D. Fla. Oct. 5, 2010). Finally in U.S. Specialty Ins. Co. v. Burd, the Court relied on Koeppel and Nova’s “guess” and “prediction” and extended the strict privity exception to allow an insurer to file a legal malpractice claim against a law firm it retained to represent its insured.
Most recently, the Florida state court in the Fourth District Court of Appeals held that it “. . . will not adopt new expansive precedent that is based on “guesses” and “forced predictions” when the Florida Supreme Court to date has so severely limited exceptions in this area of law.” Arch Ins. Co. v. Kubicki Draper, LLP, 4D17-2889, 2019 WL 318466, at *3 (Fla. 4th DCA Jan. 23, 2019). The Court in Arch considered the line of Florida Federal Court cases attempting to expand the privity requirement and recognized a limited exception to this rule, specifically when the third party is an intended beneficiary of the relationship between the law firm and the insured, i.e., when counsel drafts a will or a private placement situation. In both instances, the lawyer owes a duty to the third-parties who rely on the will drafting or private placement statement. Under the attorney-client/insured-insurer relationship, the insurer is not an intended third-party beneficiary of the attorney/law firm’s services, rather, counsel’s duty is to their client, the insured. Therefore, unless there is privity of contract, or one of these narrow exceptions apply, a third party does not have standing to bring a legal malpractice claim.
Florida state courts continue to observe the requirement of privity as an element of a claim for legal malpractice. The Arch court so states. This outcome limits potential exposure to insured attorneys/law firms as it bars claims for legal malpractice, absent contractual privity and/or intended third-party beneficiaries. Accordingly, in instances where the insured has a legal malpractice claim filed against them by a party that is neither in contractual privity with them nor is an intended third-party beneficiary, the defendant attorney will likely prevail on a motion for summary judgment.
At Shendell & Pollock we have over 30 years in defending legal malpractice claims. If you have any questions, or we can assist you, please contact Gary R. Shendell, Esq, at gary@shendellpollock.com and Diran V. Seropian, Esq. at diran@shendellpollock.com or (561) 241-2323.

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This matter came before the Court on the Plaintiffs' Motion for Summary Judgment (DE # 61, 3/3/08). The hearing on the motion was held before the undersigned on May 2, 2008. As more fully explained below, the plaintiff is entitled to judgment as a matter of law.
The plaintiff filed an action against the defendant for breach of contract for failing to make full payment for goods delivered and accepted. The plaintiff and the defendant had an on-going business relationship between 2002 and 2004, whereby, pursuant to purchase orders placed by the defendant, the plaintiff sold and shipped various polyester dyed fabric ("Goods") from China to the defendant in the United States.
The action involves eight (8) separate orders and shipments of the Goods, which had an agreed total contract price in the amount of $316,797.78. (Pl.'s Ex. 1-8; DE #) Between August 27, 2002, and March 5, 2004, the defendant made eight (8) partial payments that totaled $204,954.24. The Schedule of Partial Payment is plaintiff's Exhibit 9. The balance remaining is $111,843.54. The plaintiff claims that it is entitled to statutory interest at the rate of six percent (6%) per year from the due date of each unpaid invoice.
In opposition, the defendant filed a four-page response without filing the actual copies of the discovery responses it referenced in its response. Additionally, the defendant failed to comply with Local Rule 7.5(B) and Fed. R. Civ. P. 56(e)(2) that require a Statement of Material Facts in Dispute. The defendant also failed to filed any affidavit or declaration to support its factual assertions. After ordered to do so, the defendant filed the actual copies of the discovery responses.
A hearing on the plaintiff's motion for summary judgment was held before the undersigned on May 2, 2008.
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56( c). The moving party bears the burden of meeting this exacting standard. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); See also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). That is, "[t]he moving party bears 'the initial responsibility of informing the . . . court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.'" U.S. v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir. 1991) (quoting Celotex, 477 U.S. at 323). In assessing whether the moving party has satisfied this burden, the court is required to view the evidence and all factual inferences arising therefrom in the light most favorable to the non-moving party. See Batey v. Stone, 24 F.3d 1330, 1333 (11th Cir. 1994); See also Sheckells v. Agv-Usa Corp., 987 F.2d 1532, 1534 (11th Cir. 1993); Browning v. Peyton, 918 F.2d 1516, 1520 (11th Cir. 1990); Clemons v. Dougherty County, Ga., 684 F.2d 1365, 1368 (11th Cir. 1982); Augusta Iron & Steel Works, Inc. v. Employers Ins. of Wausau, 835 F.2d 855, 856 (11th Cir. 1988)(per curiam).
Summary judgment is appropriate when there is no dispute as to any material fact and only questions of law remain. See Reich v. John Alden Life Ins. Co., 126 F.3d 1 (1st Cir. 1997). If the record presents factual issues, the court must deny the motion and proceed to trial. Adickes, 398 U.S. at 157; See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
[T]he plain language of Rule 56(c) mandates the entry of summary judgment . . . against the party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which the party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.
Id. at 322-323. Thus, the mere existence of a scintilla of evidence in support of the non-moving party's position is insufficient. There must be evidence on which the jury could reasonably find for the non-movant. Anderson, 477 U.S. at 251; See also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).
II. The United Nations Convention on Contracts for the International Sale of Goods (1980) ("CISG") Governs.
The parties is this action are from the United States of America and the People's Republic of China. Both countries are signatories to the United Nations Convention on Contracts for the International Sale of Goods (1980) ("CISG"). The CISG "applies to contracts of sale of goods between parties whose places of business are in different States when the States are Contracting States." CISG, Art. 1(a), opened for signature April 11, 1980, S. Treaty Doc. No. 9, 98th Cong., 1st Sess. 22 (1983), 19 I.L.M. 671, reprinted at 15 U.S.C. app 332 (1998). The CISG governs "the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract." CISG, Art. 4. The CISG automatically applies to international sales contracts between parties from different contracting states unless the parties agree to exclude the application of the CISG, as stated in Article 6 of the CISG. Because the parties did not agree to exclude the application of the CISG, the CISG provides the substantive law governing this contractual dispute. See, MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino, S.P.A., 144 F.3d 1384, 1387 (11th Cir. 1998). Domestic law, including the Uniform Commercial Code as incorporated in Fla. Stat. �� 670.101 - 680.532, does not govern the parties' contractual relationship.
Any provision ... of part II of this convention that allows a contract of sale or modification or termination by agreement or any offer, acceptance or other indication of intention to be made in any form other than in writing does not apply where any party has his place of business in a Contract State which has made a declaration under Article 96 of this Convention. The parties may not derogate form or vary the effect of this article.
CISG, Art. 12. China has made such a declaration under Article 96. See China North Chemical Industries Corp. v. Beston Chemical Corp., 2006 U.S. Dist. LEXIS 35464, 2006 WL 295395 *18, n.6 (S.D. Tex. 2006) (unpublished). The plaintiff's principal place of business is in the People's Republic of China. The Chinese Declaration requires all agreements to be in writing to be enforceable.
Under the CISG, a "contract is concluded at the moment when an acceptance of an offer becomes effective." CISG, Art. 23. The defendant provided via facsimile or e-mail written orders for various goods from the plaintiff. The purchase orders constitute offers under the CISG. The plaintiff filled the orders presented by the plaintiff, shipped the orders, and submitted written invoices and packing lists to the defendant. The invoices and packing lists constitute acceptance under the CISG. The eight contracts between the plaintiff and the defendant satisfy the CISG requirements for an enforceable contract under the CISG.
III. There Is No Genuine Issue of Material Fact.
A. There Are No Written Documents to Show that the Plaintiff Agreed to Modify or Waive the Defendant's Obligation to Pay the Full Amount of the Eight Invoices.
The defendant has failed to refute the plaintiff's contention that the record is devoid of any writing to evidence any modification of the parties' eight contracts. The defendant failed to comply with Local Rule 7.5(B) and Fed. R. Civ. P. 56(e)(2) that require a Statement of Material Facts in Dispute. The defendant also failed to filed any affidavit or declaration to support its factual assertions. After ordered to do so, the defendant filed the actual copies of the discovery responses it referenced in its response.
It is undisputed that at no time after delivery of the Goods did the plaintiff, in writing, change, modify, waive, or in any way agree in writing to modify the defendant's obligation to pay the outstanding balance of $111,843.54 owed pursuant to the eight invoices. (Zhou Declaration, P 5; DE # 61-4, Ex. 9, 3/3/08)). There is no evidence in the record  to reflect a written modification of the parties' eight contracts to permit less than full payment. Any negotiations, if they occurred or to what extent they occurred, between the parties for modified payments on the eight invoices were not made in writing, are not evidenced by a writing, and do not satisfy the requirements of the Chinese Declaration under Article 96 of the CISG. Without any evidence of a written modification, the CISG requires this Court to enforce the invoices as stated. See, China North Chemical Industries Corp. v. Beston Chemical Corp., 2006 U.S. Dist. LEXIS 35464, 2006 WL 295395 *18, n.6 (S.D. Tex. 2006) (unpublished). The balance owed on the subject invoices totals $111,843.54. (Zhou Declaration, Ex. 9; DE # 61-4, 3/3/08). There being no genuine issue as to any material fact, the plaintiff is entitled to judgment as a matter of law in its favor against the defendant in the amount of $ 111,843.54.
B. The Defendant Fails to Present Evidence to Create a Genuine Issue of Material Fact to Defeat Entry of Judgment as a Matter of Law in Favor of the Plaintiff.
In its four-page opposition, the defendant maintains that the plaintiff has not satisfied the requirement that there be no genuine issue of material fact. (Def.'s Response at P 1; DE # 62, 3/18/08) The defendant concedes that it did not and "cannot produce a copy of the hundreds of writings consisting of e-mails and faxes which were exchanged over the years of business between the parties." Id. Instead, the defendant relies on its discovery responses to create a fact issue. The defendant asserts that the following factual issues preclude summary judgment: 1) the amount of business between the parties during the course of their business relationship and the sale, delivery and payment of the subject invoices; 2) whether there was written notice of non-conforming goods; 3) the partial payments in the Statement of Account (Pl.'s Ex. 9); 4) the three year delay in bringing the action; and 4) the amount of non-payment due to delivery of defective goods. Id. at PP 2-5.
None of the purported factual issues present genuine issues of material fact. The plaintiff is entitled to judgment as a matter of law on its breach of contract claim due to non-payment of eight invoices pursuant to the CISG. The defendant did not present any testimony or documents in the record that create a genuine issue of material fact, that is, whether the parties agreed in writing to a modification of the invoices to accept less than full payment.
The defendant relies on China North Chemical Industries Corp. v. Beston Chemical Corp., 2006 U.S. Dist. LEXIS 35464, 2006 WL 295395 (S.D. Tex. 2006) (unpublished), for the proposition that a fact issue exists as to the amount of non-payment due to delivery of defective goods. The defendant's reliance is misplaced. In Beston Chemical, the plaintiff's motion for partial summary judgment excluded the defendant's claim that the plaintiff breached the contract because portions of the cargo were defective or did not meet the Contract's quality specifications. 2006 U.S. Dist. LEXIS 35464, [WL] at *7. The plaintiff's motion for partial summary judgment was on the issue of onboard damages to the cargo after the plaintiff fulfilled its contractual obligations to deliver the cargo to the rail of the ship. The court granted the plaintiff's motion for partial summary judgment subject to any offsets for the defendant's claims that portions of the cargo were defective or did not meet the Contract's quality specifications.
During the hearing and well after the discovery deadline expired in this action, counsel for the defendant moved ore tenus for an enlargement of time to conduct discovery, that is, to obtain the deposition of the plaintiff's agent in China to obtain testimony about e-mails and facsimiles that evidence the defendant's requests to credit the invoices for defective Goods. The defendant's ore tenus motion is untimely. The defendant did not seek an enlargement of time to respond to the plaintiff's motion for summary judgment. The action is set for trial in June. The discovery deadline expired. The defendant's ore tenus motion for leave to conduct discovery ] is DENIED.
Without written evidence of the parties' agreement to modify their invoices, the plaintiff is entitled to a judgment in its favor. The plaintiff has satisfied its burden that there is no genuine issue of material fact. The defendant has failed to submit record evidence to dispute it. Summary judgment is appropriate. See, Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); see also, U.S. v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir. 1991).
C. The Plaintiff Is Not Entitled to Pre-judgment Interest.
The plaintiff also seeks pre-judgment interest under Florida law. The CISG is silent on the issue of interest. Because substantive domestic law does not apply, the plaintiff is not entitled to any interest. See AIG Baker Sterling Heights, LLC v. American Multi-Cinema, Inc., 508 F.3d 995 (11th Cir. 2007) (explaining that the issue of availability and amount of pre-judgment interest on an arbitration award is governed by state law, not federal law); see also, Osternck v. E.T. Barwick Industries, Inc., 825 F.2d 1521, 1526 n.8 (11th Cir. 1987). The plaintiff is not entitled to pre-judgment interest.
ORDERED AND ADJUDGED that the Plaintiffs' Motion for Summary Judgment (DE # 61, 3/3/08) is GRANTED. A judgment in the amount of $111,843.54 will be entered in favor of the plaintiff and against the defendant.
RESPECTFULLY SUBMITTED, in Chambers, at Miami, Florida, this 19th day of May, 2008.
1. During the hearing, the defendant proffered that defendant's "trial exhibit 12" was a letter that reflected the defendant's request for a credit. As the defendant conceded, the letter, however, was not part of the record. Nor did the letter present any evidence of the plaintiff's agreement to issue a credit to the defendant.

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PITTSBURGH — A couple’s claims for breach of warranty and breach of contract survived motions to dismiss filed by the builder of their custom home and the manufacturer of the windows after a federal judge in Pennsylvania on June 18 found that the repair doctrine could be applied to make the claims timely (Craig Zemba, et al. v. NVR Inc., et al., No. 17-986, W.D. Pa., 2018 U.S. Dist. LEXIS 101093).
CLEVELAND — A woman says in a lawsuit filed June 18 in Ohio state court that Atlas Roofing Corp. should replace the shingles she had installed on her roof in 2002 because their defective design allows them to absorb moisture and then blister and crack long before the expiration of the product’s 30-year warranty (Katie Burton v. Atlas Roofing Corp., No. CV 18 899593, Ohio Comm. Pls., Cuyahoga Co.).
ORLANDO, Fla. — Centex Real Estate Co. LLC on June 11 removed a class action suit accusing the builder and contractors of improperly installing the stucco on 137 homes in an Apopka, Fla., development, arguing that the federal court has jurisdiction over the case under the Class Action Fairness Act (CAFA) because the proposed class seeks more than $5 million in damages (Emerson Park Homeowners Association Inc., et al. v. Brett Lundequam, et al., No. 18-CV-913-ORL-37-DCI, M.D. Fla.).
BALTIMORE— A couple sued Jeld-Wen Inc. in Maryland federal court June 11 claiming that the company breached the terms of a June 2015 settlement agreement when replacing and repairing defective windows in their home with more defective windows (Carl J. Schramm, et al. v. Jeld-Wen Inc, No. 18-cv-01716, D. Md.).
ATLANTA — A federal judge in Georgia overseeing litigation over allegedly defective roofing shingles awarded summary judgment to the product’s manufacturer on June 8, finding that the shingles’ limited warranty does not apply to a condominium association because it was the third owner of the property (In re Atlas Roofing Corp. Chalet Shingle Products Liability Litigation, MDL 2495, Stratford Club Condominium Association v. Atlas Roofing Corp., No. 14cv1071, N.D. Ga., 2018 U.S. Dist. LEXIS 96547).
ATLANTA — A Kentucky man’s lawsuit against the manufacturer of Chalet-brand roofing shingles cannot pursue claims based on the company’s alleged breach of express and implied warranties for the product, a federal judge in Georgia ruled June 8, holding that the man failed to properly transfer the warranty after purchasing the home from the original owner and that the company did not waive its right to enforce the warranty (In re Atlas Roofing Corp. Chalet Shingle Products Liability Litigation, MDL 2495, Bryan Makowski, et al. v. Atlas Roofing Corp., No. 14-cv-3034, N.D. Ga., 2018 U.S. Dist. LEXIS 96543).
ATLANTA — A federal judge in Georgia on June 8 awarded summary judgment to Atlas Corp. after finding that an Ohio man was unable to show that an alleged defect in the shingles installed on his home caused a leak that required the roof to be replaced (In re Atlas Roofing Corp. Chalet Shingle Products Liability Litigation, MDL 2495, Brian David Seltzer, et al. v. Atlas Roofing Corp., No. 13cv4217, N.D. Ga., 2018 U.S. Dist. LEXIS 96545).
CHICAGO — A couple seeking to lead a putative class action suit against the builder of 46 homes can pursue claims for breach of contract over the defendant company’s use of 25-year shingles and wood veneer cabinets, a federal judge in Illinois ruled June 6, holding that the materials were not of the same substantial quality as those promised in purchase agreement (Paul Smith, et al. v. NVR Inc., No. 17 C 8328, N.D. Ill., 2018 U.S. Dist. LEXIS 94712).
WILMINGTON, Del. — Homeowners and their insurer filed an amended complaint on June 1 in a Delaware trial court against a general contractor allegedly responsible for the defective installation of a solar panel system for their home (Domenic P. DiStefano, et al. v. KW Solar Solutions Inc., et al., No. N16C-11-015, Del. Super.).
WILMINGTON, Del. — A federal judge in Delaware on May 29 recommended denying a couple’s motion to remand their lawsuit seeking to vacate or amend a $17,500 arbitration award they obtained from their home warranty provider and its insurer, finding that complete diversity exists between the parties and that the plaintiffs do not state the amount in controversy in their complaint (Jason Jones, et al. v. Home Buyers Warranty, et al., No. 17-773-JFB,SRF, D. Del., 2018 U.S. Dist. LEXIS 88908).
SAN FRANCISCO — A California trial court erred when granting a plaintiff’s motion to enforce the terms of a settlement agreement with the manufacturer of allegedly defective windows, a state appeals panel ruled May 24, holding that none of the settling parties had consented to the agreement in court or in a signed writing as required by California law (Theresa Teuma v. Marvin Lumber & Cedar Co., et al., No. A149733, Calif. App., 1st Dist., 2nd Div., 2018 Cal. App. Unpub. LEXIS 3631).
CARSON CITY, Nev.— Construction defects claims brought by 49 homeowners against the entities that developed their homes are subject to arbitration, the Nevada Supreme Court ruled May 24, holding that arbitration provisions in the sales agreements are enforceable under the Federal Arbitration Act (FAA) and conscionable under Nevada law (U.S. Home Corp., et al. La Harris, et al., No. 68025, Nev. Sup., 2018 Nev. Unpub. LEXIS 460).
CARSON CITY, Nev. — The Nevada Supreme Court on May 24 overturned a lower court judge’s ruling awarding summary judgment to a general contractor on a homeowners’ association’s negligence claim, holding that it is unclear if an expert’s report adequately disclosed defects in the construction of the condominium complex when it was sold by the developer to the declarant (Regent at Town Centre Homeowners’ Association v. Oxbow Construction LLC, Nos. 69777, 70296, Nev. Sup., 2018 Nev. Unpub. LEXIS 462).
TRENTON, N.J. — A condominium association on May 11 filed a lawsuit in New Jersey state court accusing an engineering firm and a contractor hired to replace breezeway decking of failing to properly install the new decking material despite the engineer’s knowledge that quarter-inch sloping was needed underneath the new material to prevent water from pooling on the deck surface (Lawrence Square Village II Condominium Association v. Kipcon Inc., et al., No. MER-L-001038-18, N.J. Super., Mercer Co.).
DOVER, Del. — A Delaware judge on May 22 awarded summary judgment to a general contractor accused of defectively constructing a group home for adults with cerebral palsy, finding that the suit was barred by the three-year statute of limitations because the construction contract stated when any possible claims would begin to accrue (Black Diamond Hope House Inc., et al. v. U&I Investments LLC, et al., No. K15C-12-034 JJC, Del. Super., Kent Co.).
GEORGETOWN, Del. — A couple sued the general contractor they hired to build an addition on their Rehoboth Beach, Del., home in Delaware state court on May 22, claiming that the builder’s negligence when installing the foundation, footers and framing have caused the structure to pull away from the existing home (Dennis Runsten, et al. v. Burton Builders LLC, No. S18C-05-025, Del. Super., Sussex Co.).
WILMINGTON, Del. — A subcontractor who installed the windows in a man’s home says in a May 18 motion for summary judgment filed in Delaware state court that there is no evidence that his work caused water intrusion that has prevented a man from selling his home (Gary Loh v. Muirfield Associates LLC, et al., No. N16C-09-234, Del. Super., New Castle Co.).
BEAUFORT, S.C. — A federal judge in South Carolina held that a roofing subcontractor can face a general contractor’s third-party claim of gross negligence for moisture intrusion that occurred at a golf clubhouse and community clubhouse due to a lack of flashing because there is evidence that there is evidence that the subcontractor supplied roofing material and flashing (Hampton Hall LLC v. Chapman Coyle Chapman & Associates Architects AIA Inc., et al., No. 17-1575-RMG, D. S.C., 2018 U.S. Dist. LEXIS 84502).
CLEVELAND — An Ohio couple filed a lawsuit in state court on May 16 against the maker of shingles that were installed on their home, claiming that they were defective because they allowed the roof to leak, causing damage to their kitchen (Blanche Forman, et al. v. IKO Industries Inc., No. CV 18 897861, Ohio Comm. Pls., Cuyahoga Co.).
HARTFORD, Conn. — A Connecticut judge on April 20 dismissed a homeowners association’s claims against four subcontractors accused of construction defects, finding that it lacked standing because the subcontractors were not provided with proper presuit notification (Sherwood Falls Homeowners Association Inc. v. CIL Development of Kensington Inc., et al., No. X07HHDCV166086133S, Conn. Super., Hartford Dist., 2018 Conn. Super. LEXIS 805).

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Under subd. 5 of § 250 of the Judicial Code of 1911, a final judgment of the Court of Appeals of the District of Columbia can only he reviewed by this Court in cases where the validity of any authority exercised under the United States, or the existence or scope of any power or duty of any officer of the United States, is drawn in question.
The meaning of the phrase "drawn in question," as it occurs in § 250 of the Judicial Code, is the same as in § 709, Rev.Stat.; § 5 of the Circuit Court of Appeals Act, and other statutes regulating territorial appeals.
A statute of the United States authorizing an officer to act in a certain manner under certain conditions is not drawn in question, nor is the scope or validity of authority of the officer acting thereunder drawn in question, simply because there is a controversy as to whether the specified conditions do or do not exist.
directed to him to issue the patent on the ground that there was no protest does not draw in question the validity or scope of his authority, but only the question of fact as to existence of a protest, and there is no jurisdiction in this Court under § 250 of the Judicial Code to review the judgment.
Writ of error to review 40 Wash. 780 denied.
The facts, which involve the construction of § 250 of the Judicial Code of 1911 and the jurisdiction of this Court to review judgments of the Court of Appeals of the District of Columbia, are stated in the opinion.
This is a petition for the allowance of a writ of error to the Court of Appeals of the District of Columbia to review the judgment of that court affirming the judgment of the Supreme Court of the District of Columbia dismissing the petition of the Champion Lumber Company against the Secretary of the Interior and the Commissioner of the General Land Office.
"was made for speculative purposes, with no attempt to comply with the requirements of the law, and recommended that the entry be cancelled on the ground of nonresidence, noncultivation, nonimprovement, and abandonment."
Thereupon the Commissioner directed that a hearing be had. The petitioner moved for a stay of proceedings, claimed that, under § 7, supra, the entry should be patented without further proceedings. The motion was denied by the Commissioner, and this denial affirmed by the Secretary of the Interior, who later denied a motion to review his decision, finding that a protest had been filed against the patent of Lucy Johns' homestead entry within two years from the issuance of the receiver's receipt, and holding that the case should proceed to hearing on the special agent's charge.
"Every point advanced by appellant in this case is, in our view, settled by the following very recent decisions: Fisher v. United States, 37 App.D.C. 436; Ness v. Fisher, 223 U. S. 683; McKenzie v. Fisher, 39 App.D.C. 7. In Fisher v. United States, which involved the interpretation of the very statute upon which appellant here relies, this Court, speaking through Mr. Justice Van Orsdel, said:"
power resides nowhere in our system of government, and while the supervisory authority vested in the Secretary of the Interior and the Commissioner of the General Land Office over the disposition of the public lands is neither unlimited nor arbitrary, yet the question here presented as to whether or not the communication and order amounted to a protest, which we regard as exceedingly close, was one clearly within the power of the Commissioner to decide. To say that he was mistaken would require us to review a matter exclusively confided by law to his discretion and judgment. This proceeding will not admit of such a review."
"The communications of Special Agent Hammer respecting this entry were made within the two years contemplated by said Act of March 3, 1891, as was the communication of June 18, 1904, from the Commissioner to said agent. It is apparent that these communications resulted in the withholding of a patent -- in other words, that the Commissioner regarded the right to that patent as dependent upon the outcome of the investigation which was to ensue. The subsequent decision of the Secretary that what was done within the two-year period constituted a protest against the patenting of the entry was not arbitrary or capricious, but was based upon evidence, and the sufficiency of that evidence was for his, and not our, determination."
scope of any power or duty of an officer of the United States, is drawn in question."
The case, therefore, to be appealable to this Court from the Court of Appeals of the District of Columbia, must be one in which the validity of the authority exercised or the existence or scope of the authority of the officer named is drawn in question.
"Drawn in question" is a phrase long used in other statutes of the United States regulating appellate jurisdiction. It is found in § 709 of the Revised Statutes, governing appeals from state courts to this Court. It is in the fifth section of the Circuit Court of Appeals Act of March 3, 1891 (26 Stat. 826, 828, c. 517). It is in the statute regulating territorial appeals (March 3, 1885, 23 Stat. 443, c. 355). The meaning of this phrase has been the subject of frequent consideration in this Court, and it is unnecessary to review the numerous cases in which it has been interpreted.
"some right, title, privilege, or immunity dependent on the treaty must be so set up or claimed as to require the circuit court to pass on the question of validity or construction in disposing of the right asserted."
treaty was held to be drawn in question where the petition for a writ of habeas corpus and the warrant under which the accused was arrested referred to the treaty, and the court below proceeded on the ground that the determination of the part upon the meaning of certain provisions part upon the meaning of certain provisions of that treaty, these provisions having been duly brought to the attention of the court. It has also been held that the validity of a statute of the United States or authority exercised thereunder is drawn in question when the existence or constitutionality or legality of such law is denied and the denial forms the subject of direct inquiry in the case. United States v. Lynch, 137 U. S. 280; Linford v. Ellison, 155 U. S. 503; Snow v. United States, 118 U. S. 346, 118 U. S. 353; McLean v. R. Co., 203 U. S. 38.
used in the statute -- that is, brought forward and made a ground of decision. The statutes under which the officers of the United States acted were concededly valid, and the authority exerted was lawful and within the powers of the officers, if the facts justified their action. The petitioner's real attack upon the action of the Secretary and Commissioner was because the facts shown did not warrant the exercise of the power given by law. The decision of that issue, upon which it is clear the case turned, neither involved nor decided the questions which make the case appealable to this Court under the fifth clause of § 250 of the Judicial Code.


(a) "Training center" means the law enforcement training center within the university of Kansas, created by K.S.A. 74-5603, and amendments thereto.
(b) "Commission" means the Kansas commission on peace officers' standards and training, created by K.S.A. 74-5606, and amendments thereto, or the commission's designee.
(c) "Chancellor" means the chancellor of the university of Kansas, or the chancellor's designee.
(g) "Police officer" or "law enforcement officer" means a full-time or part-time salaried officer or employee of the state, a county or a city, whose duties include the prevention or detection of crime and the enforcement of the criminal or traffic laws of this state or of any municipality thereof. Such terms shall include, but not be limited to: The sheriff, undersheriff and full-time or part-time salaried deputies in the sheriff's office in each county; deputy sheriffs deputized pursuant to K.S.A. 19-2858, and amendments thereto; conservation officers of the Kansas department of wildlife, parks and tourism; university police officers, as defined in K.S.A. 22-2401a, and amendments thereto; campus police officers, as defined in K.S.A. 22-2401a, and amendments thereto; law enforcement agents of the director of alcoholic beverage control; law enforcement agents designated by the secretary of revenue pursuant to K.S.A. 2018 Supp. 75-5157, and amendments thereto; law enforcement agents of the Kansas lottery; law enforcement agents of the Kansas racing commission; deputies and assistants of the state fire marshal having law enforcement authority; capitol police, existing under the authority of K.S.A. 75-4503, and amendments thereto; special investigators of the juvenile justice authority; special investigators designated by the secretary of labor; and law enforcement officers appointed by the adjutant general pursuant to K.S.A. 48-204, and amendments thereto. Such terms shall also include railroad policemen appointed pursuant to K.S.A. 66-524, and amendments thereto; school security officers designated as school law enforcement officers pursuant to K.S.A. 72-6146, and amendments thereto; the manager and employees of the horsethief reservoir benefit district pursuant to K.S.A. 2018 Supp. 82a-2212, and amendments thereto; and the director of the Kansas commission on peace officers' standards and training and any other employee of such commission designated by the director pursuant to K.S.A. 74-5603, and amendments thereto, as a law enforcement officer. Such terms shall not include any elected official, other than a sheriff, serving in the capacity of a law enforcement or police officer solely by virtue of such official's elected position; any attorney-at-law having responsibility for law enforcement and discharging such responsibility solely in the capacity of an attorney; any employee of the commissioner of juvenile justice who is employed solely to perform correctional, administrative or operational duties related to juvenile correctional facilities; any employee of the secretary of corrections, any employee of the secretary for children and families; any deputy conservation officer of the Kansas department of wildlife, parks and tourism; or any employee of a city or county who is employed solely to perform correctional duties related to jail inmates and the administration and operation of a jail; or any full-time or part-time salaried officer or employee whose duties include the issuance of a citation or notice to appear provided such officer or employee is not vested by law with the authority to make an arrest for violation of the laws of this state or any municipality thereof, and is not authorized to carry firearms when discharging the duties of such person's office or employment. Such term shall include any officer appointed or elected on a provisional basis.
(j) "Misdemeanor crime of domestic violence" means a violation of domestic battery as provided by K.S.A. 21-3412a, prior to its repeal, or K.S.A. 2018 Supp. 21-5414, and amendments thereto, or any other misdemeanor under federal, municipal or state law that has as an element the use or attempted use of physical force, or the threatened use of a deadly weapon, committed against a person with whom the offender is involved or has been involved in a "dating relationship" or is a "family or household member" as defined in K.S.A. 2018 Supp. 21-5414, and amendments thereto, at the time of the offense.
History: L. 1968, ch. 81, § 2; L. 1973, ch. 331, § 1; L. 1976, ch. 351, § 1; L. 1977, ch. 278, § 1; L. 1978, ch. 365, § 3; L. 1978, ch. 324, § 1; L. 1979, ch. 255, § 1; L. 1982, ch. 315, § 2; L. 1982, ch. 322, § 2; L. 1982, ch. 323, § 1; L. 1985, ch. 257, § 1; L. 1987, ch. 292, § 27; L. 1987, ch. 277, § 2; L. 1987, ch. 112, § 39; L. 1989, ch. 118, § 183; L. 1995, ch. 180, § 3; L. 1997, ch. 168, § 2; L. 2001, ch. 177, § 13; L. 2003, ch. 29, § 4; L. 2004, ch. 180, § 11; L. 2006, ch. 107, § 5; L. 2006, ch. 170, § 7; L. 2007, ch. 160, § 15; L. 2007, ch. 195, § 38; L. 2010, ch. 42, § 3; L. 2011, ch. 30, § 254; L. 2012, ch. 56, § 2; L. 2012, ch. 166, § 17; L. 2013, ch. 106, § 12; L. 2014, ch. 115, § 306; L. 2018, ch. 92, § 3; July 1.
Section was amended twice in the 1995 session, see also 74-5602a.


(4A) The Chief Justice, if he is not a Judge of the Supreme Court, and a  Judge who is not a Judge of a High Court, may, by writing under his hand addressed to the President, resign his office.
There shall be constituted for the purposes of this Chapter a court to be called the Federal Shariat Court.
 The Court shall consist of not more than eight Muslim [ Judges ], including the [Chief Justice], to be appointed by the President.
The Chief Justice shall be a person who is, or has been, or is qualified, to be, a Judge of the Supreme Court or who is or has been a permanent Judge of a High Court.
 (3A) Of the Judges not more than four shall be persons each one of whom is, or has been, or is qualified to be, a Judge of a High Court and not more than three shall be ulema who are well- versed in Islamic law.
Provided that a Judge of a High Court shall not be appointed to be a [Judge] for a period exceeding [two years] except with his consent and [, except where the Judge is, himself the Chief Justice], after consultation by the President with the Chief Justice of the High Court.
require a Judge to perform such other functions as the President may deem fit; and pass such other order as he may consider appropriate.
A Judge of a High Court who does not accept appointment as a  Judge shall be deemed to have retired from his office and, on such retirement, shall be entitled to receive a pension calculated on the basis of the length of his service as Judge and total service, if any, in the service of Pakistan.
The Principal seat of the Court shall be at Islamabad, but the Court may from time to time sit in such other places in Pakistan as the  Chief Justice may, with the approval of the President, appoint.
Before entering upon office, the Chief Justice and a  Judge shall make before the President or a person nominated by him oath in the form set out in the Third Schedule.
At any time when the  Chief Justice or a Judge is absent or is unable to perform the functions of his office the President shall appoint another person qualified for the purpose to act as Chief Justice or, as the case may be, Judge.
A  Chief Justice who is not a Judge of the Supreme Court shall be entitled to the same salary, allowances and privileges as are admissible to a Judge of the Supreme Court and a Judge who is not a Judge of a High Court shall be entitled to the same salary, allowances and privileges as are admissible to a Judge of a High Court.
Panel of Ulema and Ulema members. ] Omitted.
The Court may,  either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam, as laid down in the Holy Quran and the Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam.
 (1A) Where the Court takes up the examination of any law or provision of law under clause (1) and such law or provision of law appears to it to be repugnant to the Injunctions of Islam, the Court shall cause to be given to the Federal Government in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or to the Provincial Government in the case of a law with respect to a matter not enumerated in either of those Lists, a notice specifying the particular provisions that appear to it to be so repugnant, and afford to such Government adequate opportunity to have its point of view placed before the Court.
 Provided that no such decision shall be deemed to take effect before the expiration of the period within which an appeal therefrom may be preferred to the Supreme Court or, where an appeal has been so preferred, before the disposal of such appeal.
such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect.
Provided that nothing contained in clauses (3A) and (B) shall apply to assessments made, orders passed, proceedings pending and amounts payable or recovered before the enforcement of the laws enacted in pursuance of clause (3A).
The Court may call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of, such court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Provided that nothing in this Article shall be deemed to authorize the Court to convert a finding of acquittal into one of conviction and no order under this Article shall be made to the prejudice of the accused unless he has had an opportunity of being heard in his own defense.
The Court shall have power to conduct its proceedings and regulate its procedure in all respects as it deems fit.
The Court shall have the power of a High Court to punish its own contempt.
A party to any proceedings before the Court under clause (1) of Article 203D may be represented by a legal practitioner who is a Muslim and has been enrolled as an advocate of a High Court for a period of not less than five years or as an advocate of the Supreme Court or by a jurisconsult selected by the party from out of a panel of jurisconsults maintained by the Court for the purpose.
For being eligible to have his name borne on the panel of jurisconsults referred to in clause (4), a person shall be an Aalim who, in the opinion of the Court, is well- versed in Shariat.
A legal practitioner or jurisconsult representing a party before the Court shall not plead for the party but shall state, expound and interpret the Injunctions of Islam relevant to the proceedings so far as may be known to him and submit to the Court a written statement of his interpretation of such Injunctions of Islam.
The Court may invite any person in Pakistan or abroad whom the Court considers to be well-versed in Islamic law to appear before it and render such assistance as may be required of him.
No court- fee shall be payable in respect of any petition or application made to the Court under [Article 203D].
The Court shall have power to review any decision given or order made by it.
Any party to any proceedings before the Court under Article 203D aggrieved by the final decision of the Court in such proceedings may, within sixty days of such decision, prefer an appeal to the Supreme Court:  Provided that an appeal on behalf of the Federation or of a Province may be preferred within six months of such decision.
The provisions of clauses (2) and (3) of Article 203D and clauses (4) to (8) of Article 203E shall apply to and in relation to the Supreme Court as if reference in those provisions to Court were a reference to the Supreme Court.
if the Federal Shariat Court has imposed any punishment on any person for contempt of the Court.
more than two Ulema to be appointed by the President to attend sittings of the Bench as ad- hoc members thereof from amongst the Judges of the Federal Shariat Court or from out of a panel of Ulema to he drawn up by the President in consultation with the Chief Justice.
person appointed under paragraph (b) of clause (3) shall hold office for such period as the President may determine.
Reference in clauses (1) and (2) to Supreme Court shall be construed as a reference to the Shariat Appellate Bench.
While attending sittings of the Shariat Appellate Bench, a person appointed under paragraph (b) of clause (3) shall have the same power and jurisdiction, and be entitled to the same privileges, as a Judge of the Supreme Court and be paid such allowances as the President may determine.
Subject to clause (2) nothing in this Chapter shall be deemed to require any proceedings pending in any court or tribunal immediately before the commencement of this Chapter or initiated after such commencement, to be adjourned or stayed by reason only of a petition having been made to the Court for a decision as to whether or not a law or provision of law relevant to the decision of the point in issue in such proceedings is repugnant to the Injunctions of Islam; and all such proceedings shall continue, and the point in issue therein shall be decided, in accordance with the law for the time being in force.
proceedings under clause (1) of Article 203B of the Constitution that may be pending before any High Court immediately before the commencement of this Chapter shall stand transferred to the Court and shall be dealt with by the Court from the stage from which they are so transferred.
Neither the Court nor the Supreme Court shall in the exercise of its jurisdiction under this Chapter have power to grant an injunction or make any interim order in relation to any proceedings pending in any other court or tribunal.
The Court may, by notification in the official Gazette, make rules for carrying out the purposes of this Chapter.
the decision of cases in which the members constituting a Bench are equally divided in their opinion.
Until rules are made under clause (1), the Shariat Benches of Superior Courts Rules, 1979, shall, with the necessary modifications and so far as they are not inconsistent with the provisions of this Chapter, continue in force.
Substituted sucessively by P.O. No.7 of 1983 and P.O. No.2 of 1984 and P.O.No.14 of 1985, Art. 2 and Sch., to read as above.
Subsituted by P.O. No. 7 of 1981, Art.2.
Subsituted by P.O. No. 5 of 1982, Art.2.
Subsituted by P.O. No. 24 of 1985, Art.4.
Inserted by P.O. No.4 of 1980, Art.2.
Inserted by P.O. No.14 of 1985, Art.2. and Sch.
Substituted by P.O. No.5 of 1982, Art. 3.
Article 203CC, which was inserted by P.O. No.5 of 1981, omitted by P.O. No.7 of 1981, Art. 3.
Inserted by P.O. No.5 of 1980, Art.4.
Inserted by P.O. No.1 of 1980, Art.2.
Substituted and added, and shall be deemed always to have been so substituted and added, by P.O. No.1 of 1984, Art.2.
Clause (4) omitted by P.O. No.4 of 1980, Art.3.
Article 203DD, as inserted ibid, substituted by P.O. No. 5 of 1982, Art. 5.
Substituted by P.O. No.4 of 1980, Art.5, for "this Article".
Added by P.O. No. 5 of 1981, Art. 3.
Substituted and added by P.O. No.9 of 1983, Art.2.
Inserted by P.O. No.5 of 1982, Art.6.
Substituted by P.O. No.12 of 1982, Art.2.
Inserted by P.O. No. 5 of 1982, Art.7.
Article 203 I omitted by P.O. No.5 of 1982, Art.8.
The word "and "omitted by P.O. No.4 of 1980, Art.6.
Substituted, ibid, for full stop.
Paragraphs (c), (d) and (e) added by P.O. No. 4 of 1980, Art.6.