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[274 U.S. 259, 260] The Attorney General and Mrs. Mabel Walker Willebrandt, Asst. Atty. Gen., for the United States.
[274 U.S. 259, 261] Mr. Frederick W. Aley, of Charleston, S. C., pro hac vice, for respondent.
The defendant in error was convicted of willfully refusing to make a return of his net income as required by the Revenue Act of 1921, Act Nov. 23, 1921, c. 136, 223(a), 253 (42 Stat. 227, 250, 268 (Comp. St. 6336 1/8 kk, 6336 1/8 v)). The judgment was reversed by the Circuit Court of Appeals. Sullivan v. United States, 15 F.(2d) 809. A writ of certiorari was granted by this Court.
We may take it that the defendant had sufficient gross income to require a return under the statute unless he was exonerated by the fact that the whole or a large [274 U.S. 259, 263] part of it was derived from business in violation of the National Prohibition Act (Comp. St. 10138 1/4 et seq.). The Circuit Court of Appeals held that gains from illicit traffic in liquor were subject to the income tax, but that the Fifth Amendment to the Constitution protected the defendant from the requirement of a return.
The Court below was right in holding that the defendant's gains were subject to the tax. By section 213(a), being Comp. St. 6336 1/8 ff, gross income includes 'gains, profits, and income derived from ... the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever.' These words are also those of the earlier Act of October 3, 1913, c. 16, section II, B (38 Stat. 114, 167), except that the word 'lawful' is omitted before 'business' in the passage just quoted. By section 600 (42 Stat. 285 (Comp. St. 5986e)), and by another Act approved on the same day Congress applied other tax laws to this forbidden traffic. Act Nov. 23, 1921, c. 134, 5 (42 Stat. 222, 223 (Comp. St. 10138 4/5 c-10138 1/5 e)). United States v. One Ford Coupe , 272 U.S. 321, 327 , 47 S. Ct. 154, 47 A. L. R. 1025;1 United States v. Stafoff, 260 U.S. 477, 480 , 43 S. Ct. 197. We see no reason to doubt the interpretation of the Act, or any reason why the fact that a business is unlawful should exempt it from paying the taxes that if lawful it would have to pay.
As the defendant's income was taxed, the statute of course required a return. See United States v. Sischo, 262 U.S. 165 , 43 S. Ct. 511. In the decision that this was contrary to the Constitution we are of opinion that the protection of the Fifth Amendment was pressed too far. If the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all. We are not called on to decide what, if anything, he might have withheld. Most of the items warranted no compaint. It would be an extreme if not an extravagant application [274 U.S. 259, 264] of the Fifth Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in crime. But if the defendant desired to test that or any other point he should have tested it in the return so that it could be passed upon. He could not draw a conjurer's circle around the whole matter by his own declaration that to write any word upon the government blank would bring him into danger of the law. Mason v. United States, 244 U.S. 362 , 37 S. Ct. 621; United States ex rel. Vajtauer v. Commissioner of Immigration ( January 3, 1927) 273 U.S. 103 , 47 S. Ct. 302. In this case the defendant did not even make a declaration, he simply abstained from making a return. See further the decision of the Privy Council, Minister of Finance v. Smith (1927) A. C. 193.
It is urged that if a return were made the defendant would be entitled to deduct illegal expenses such as bribery. This by no means follows but it will be time enough to consider the question when a taxpayer has the temerity to raise it.
[ Footnote 1 ] 71 L. Ed. 279.


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On February 1, the Senate Finance Committee suspended its rules “regarding quorum requirements for nomination votes” to advance President Trump’s nominee for Treasury Secretary, Steven Mnuchin, to the full Senate for a confirmation vote. The move allowed Republicans to avoid involving Democrats in the confirmation markup process since at least one member of that party would need to be present to reach a quorum and proceed.
The Republican power play followed a boycott of the confirmation markup the day before by committee Democrats who were rightfully angry at Mnuchin for his lack of honesty with the committee following reports from both The Columbus Dispatch and The Intercept that revealed Mnuchin willfully misled senators about the foreclosure practices of his former bank: contrary to his repeated denials, OneWest did, in fact, “robo-sign” foreclosure documents.
In additional to Ohio and Texas cases reported by The Columbus Dispatch and The Intercept, OneWest also has been accused of “robo-signing” documents in numerous court cases, including cases in California, Massachusetts, and Rhode Island.
OneWest’s “‘outsourcing vendor,’” Lender Processing Services (LPS), was entangled in a “‘massive’ robo-signing scheme” in Nevada. OneWest was named in a class action lawsuit in which LPS was accused of robo-signing foreclosure documents.
Despite claiming his bank never “robo-signed” mortgages, Mnuchin signed a document in 2011 in which the United States Office of Thrift Supervision found that OneWest had “filed or caused to be filed” potentially false affidavits “not based . . . on personal knowledge or review of relevant books and records.” Mnuchin hired an “independent” consulting firm that wrote a report to support his claim that OneWest had never robo-signed documents, but just 2 percent of OneWest’s relevant mortgages were reviewed for that portion of the report. Furthermore, one of the co-owners of OneWest had a financial stake in the company that did the “independent” analysis.
OneWest was accused of robo-signing after the bank foreclosed on Rhonda Mills’ Massachusetts home in 2011. Mills filed suit against OneWest, alleging that a “known robo-signer” employed by the bank had signed her documents in 2009.
Kevin Hughes sued OneWest Bank, alleging the bank had used “an admitted and known robo-signer to fabricate documents” in order to foreclose upon his California home in 2009.
In 2010, Clara Akalarian sued OneWest Bank, alleging that the person who executed foreclosure-related documents was a “robo-signer,” and that OneWest had wrongly started to foreclose upon her Rhode Island home.
During the 2012 bankruptcy proceedings of Morris Maxwell, the court ruled that Erica Johnson-Seck, an admitted robo-signer, had executed the mortgage on Morris Maxwell, whose home had been foreclosed upon.
In 2012, Eliazer Robles and her husband unsuccessfully sued OneWest for “fraud” and “unfair business practices.” They accused OneWest of employing a “robo-signer” for the foreclosure documents on their home.
OneWest Financial Services Inc., was subject to a “foreclosure ban” in New Jersey after a “robo-signing scandal” in 2010.
Johnson-Seck says she conducted quality control on LPS and was “close friends” with an LPS employee who worked on-site at OneWest in Pasadena, CA.
As previously noted, OneWest Financial Services Inc., was subject to a “foreclosure ban” in New Jersey after a “robo-signing scandal” in 2010.
OneWest neither admitted nor denied the findings, however Steven Mnuchin did sign the Order on behalf of OneWest.
OneWest’s “independent” consultant was Navigant Consulting, Inc.
On September 8, 2011, Navigant Consulting, Inc., submitted a Statement of Work to OneWest concerning “an independent review of residential foreclosure proceedings for loans serviced by One West Bank, FSB (“OneWest”) and residential foreclosure sales that have been pending or occurred during the period from January 1, 2009 to December 31, 2010.” The statement “comments and guidance received from the Office of the Comptroller of the Currency” and outlined the steps the company would take to review foreclosures.
Soros Fund Management, LLC, in the quarter that ended on September 30, 2011, disclosed ownership of 12,300 shares of Navigant Consulting, Inc. valued at $114,000. At the time, Soros was a co-owner of OneWest Bank.
It appears that Mnuchin’s comments above are based on the “independent” study by Navigant. However, Navigant reviewed just 3,836 of the 192,199 cases that fell within the scope of the review to determine if the “Servicer did not have standing to foreclose.” This constitutes just under 2 percent of the total number of mortgages within the scope of review.
 MJ Lee, “Republicans Suspend Committee Rules, Advance Mnuchin, Price Nominations,” CNN, February 1, 2017.
 Zachary Warmbrodt, “Senate Finance Democrats Boycott Mnuchin, Price Votes,” Politico, January 31, 2017; Alan Johnson and Jill Riepenhoff, “Trump Treasury Pick Mnuchin Misled Senate on Foreclosures, Ohio Cases Show,” Columbus Dispatch, January 29, 2017; and David Dayen, “Mnuchin Again Denies Robo-Signing, despite yet More Evidence He Is Lying,” The Intercept, January 30, 2017.
 Phil Mattingly, “Treasury Secretary Nominee’s Foreign Money Links Bring New Scrutiny,” CNN, January 31, 2017.
 Mills v. U.S. Bank, et al., No. 13-1907; Hughes v. OneWest Bank, No. A130897; OneWest Bank, FSB v. Stoner, 2011-Ohio-4672; Henning v. OneWest Bank FSB, DC-10-16465-L; Akalarian v. Nation One Mortgage, et al., No. PC 2010-4744; Maxwell v. OneWest Bank, No. 12-31917DM; Chapter 13, Eliazer Robles, et al. v. One West Bank, FSB, October 22, 2012; Johnson-Seck Deposition, July 9, 2009.
 Kate Barry, “Court Lifts N.J.’s Foreclosure Ban on Ally,” National Mortgage News, September 19, 2011; and Appraisal Institute, “New Jersey Lifts Ban on Foreclosures by Robo-Signing Banks,” September 21, 2011.
 Ariana Eunjung Cha, “OneWest Bank Employee: ‘Not More Than 30 Seconds’ to Sign Each Foreclosure Document,” Washington Post, September 30, 2010; Jeff Horwitz, “Nevada Files First Criminal Charges in Robo-Signing Case,” American Banker, November 16, 2011; Johnson-Seck Deposition, July 9, 2009; Steve Green, “Lender Processing: Faces Class Action Over Robosigning Problems,” Class Action Reporter, January 30, 2012; and James O’Toole, “Two Indicted in ‘Massive’ Nevada Robo-Signing Case,” CNN, November 17, 2011.
 In the Matter of One West Bank, FSB, Consent Order, Order No. WN-11-011, OTS Docket No. 18129, April 13, 2011; “Holdings Report for the Calendar Year or Quarter Ended September 30, 2011,” Soros Fund Management LLC, Securities and Exchange Commission Form 13-F, File Number 028-06420, November 14, 2011; Nathan Vardi, “John Paulson and George Soros Score Big Selling OneWest Bank For $3.4 Billion,” Forbes, July 22, 2014; Dan Froomkin, “Mnuchin Questions for Response,” from Senate Finance Committee, Hearing on the Nomination of Steve Mnuchin to be Secretary of the Treasury, The Intercept, January 22, 2017; and “Foreclosure-Related Consent Orders Status Report: Observations, Payments, and Foreclosure Prevention Assistance,” United States Office of the Comptroller of the Currency, April 2014.
 Eliazer Robles, et al. v. One West Bank, FSB, October 22, 2012.
 Kate Barry, “Court Lifts N.J.’s Foreclosure Ban on Ally,” National Mortgage News, September 19, 2011.
 Steve Green, “Lender Processing: Faces Class Action Over Robosigning Problems,” Class Action Reporter, January 30, 2012.
 In the Matter of One West Bank, FSB, Consent Order, Order No. WN-11-011.
 Testimony of Morris Morgan, Deputy Comptroller for Large Bank Supervision, Before the Committee on Oversight and Government Reform, United States House of Representatives, March 19, 2012.
 “Statement of Work: April 13, 2011, Consent Order, Foreclosure Review,” Navigant Consulting, Inc. (Presented to OneWest Bank, FSB), September 8, 2011.

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« Judge may be charged with Violation if he fails to take possession of suspended drivers license.
The U.S. Supreme Court’s decision in Booker ushered in a new era in sentencing not only because it rendered the Sentencing Guidelines “advisory,” but also because it introduced a new standard of review for sentencing decisions: reasonableness.
Although appeals of above-the-range, and even within-the-range, sentences far outnumber appeals of below-the-range sentences, a number of recent decisions have explored the lower bounds of reasonableness. For many courts, reasonableness is a question of degree: the farther a sentence is from the guideline range, the more scrutiny the court will apply.
A review of recent below-the-range cases in the U.S. Court of Appeals for the Second Circuit, however, reveals that in this circuit at least, post-Booker appellate review is effectively the same as it was pre-Feeney: absent an error of law or clearly erroneous finding of fact, such a sentence will not be overturned absent an abuse of discretion.
The Second Circuit also has had the opportunity recently to review below-the-range sentences. In at least four such decisions, the court vacated and remanded for resentencing; yet the court appears to be affording more deference to the sentencing judge than its sister circuits. What follows is a look at those cases.
Joseph P. Thorn ran A+ Environmental Services Inc., an asbestos abatement company. A+ routinely submitted low bids for contracts on the assumption that it would employ illegal shortcuts, including failing to contain dust or provide protective gear and instructing workers to dump bags of loose asbestos.
The Second Circuit reversed, requiring a more-detailed record to review the criminal history departure and instructing the district court to reconsider its heartland departure in light of United States v. McCarthy,8 which specifically held that money laundering may lie in the heartland of cases despite not involving drug trafficking or organized crime.
The district court again departed to a criminal history category of I and applied a heartland departure. The court concluded that Mr. Thorn’s prior unrelated convictions did not demonstrate a risk of recidivism. McCarthy, the court held, was distinguishable because the money laundering was not critical to the enterprise. This time, however, Judge Scullin imposed a 168-month sentence.
The Second Circuit held that sentence unreasonable. “A district court abuses or exceeds the discretion accorded to it when its decision rests on an error of law . . . a clearly erroneous factual finding, or . . . cannot be located within the range of permissible decisions.”9 The court held that the district court committed an error of law because the heartland departure rested on a misinterpretation of McCarthy. It further held that the district court had also “abused its discretion” in departing to criminal history category I because it failed to account for two previous civil cases involving similar bad acts. The court remanded again for resentencing, directing the district court not to depart on these grounds.
James Rattoballi successfully built his printing company into a $7-million-dollar-a-year business. Part of that success, however, resulted from a kickback scheme. Mr. Rattoballi traded clothing, gifts and cash to advertisers in exchange for contracts.
Mr. Rattoballi pleaded guilty to conspiracy to rig bids and to commit mail fraud. Judge Thomas P. Griesa calculated a guideline range of 27-33 months but imposed a sentence of one year home confinement and five years’ probation, citing Mr. Rattoballi’s ultimate “com[ing] clean” after withholding information from the government, the stigma of a felony conviction, the damage imprisonment would cause his business and his lesser culpability relative to one of the advertisers.
Timothy J. Toohey, a New York attorney, pleaded guilty to willfully underreporting his income. Mr. Toohey agreed to a guideline range of 15 to 21 months imprisonment but moved for a departure based on the extraordinary impact imprisonment would have on his business.
The Second Circuit began by noting that its previous opinion had not mandated any specific sentence, but only required that the district court consider all of the 3553(a) factors in deciding upon a guideline or nonguideline sentence. The court viewed the district court’s statement that it does not abuse the guidelines as an indication that it had placed too much weight on the guidelines, especially in light of its misapprehension of the Second Circuit’s previous opinion. In light of Judge Elfvin’s acknowledged bias, the court remanded for resentencing before a different judge.
Judge Robert W. Sweet agreed. The court concluded that the 100:1 ratio called for under the guidelines created an unwarranted disparity between those convicted of crack and powder cocaine offenses. He noted that the Sentencing Commission itself had proposed a more lenient 20:1 ratio and, following that suggested policy, he imposed a sentence of 87 months.
The Second Circuit reversed. The court noted that the 100:1 ratio was derived from the mandatory minimum sentences Congress adopted in the Anti-Drug Abuse Act of 1986. Although the Sentencing Commission had three times suggested reducing or eliminating the ratio, Congress had repeatedly rejected such proposals. Thus, the court concluded, Congress had made its intentions clear and the district court had committed an error of law by substituting its own policy judgment for Congress’ rather than grounding its sentencing decision on facts specific to Mr. Castillo’s case.
Prior to the Feeney Amendment, appellate courts were required to give “due deference” to a sentencing court’s application of the guidelines to the facts presented in a particular case. Previously, in United States v. Koon,19 the Supreme Court interpreted the due deference standard. “District courts have an institutional advantage over appellate courts in making these sorts of determinations,” the court held, “especially as they see so many more guidelines cases than appellate courts do.”20 Therefore, the court concluded, a district court’s sentencing decisions, other than errors of law or clearly erroneous factual determinations, were to be upheld unless they represented an abuse of discretion.
Nor should too much be read into the court’s multiple reversals of below-the-range sentences. The government is extremely selective about the sentencing decisions it appeals-for example, from October 2004 through September 2005, below-the-range sentences were imposed in more than 1,200 noncooperator cases in the Second Circuit,22 yet the government appealed only 19 of those sentences.23 In other words, the government generally appeals only those below-the-range sentences that it regards as most extreme, leaving the others undisturbed. Thus, the fact of multiple reversals in this small category of unusual cases cannot be taken as a sign that the Court of Appeals will routinely reverse below-the-range sentences.
The Second Circuit’s recent sentencing decisions do not represent a retreat from the principle that district courts have an institutional advantage in determining what a “reasonable” sentence is in a particular case. The Second Circuit appears ready to remand for resentencing only in the face of an error of law or fact or a record that demonstrates the judge’s failure to consider all of the 3553(a) factors. Nevertheless, these decisions serve as a reminder to defense counsel of the importance of presenting to the sentencing court all possible legitimate grounds for a below-the-range sentence in order to maximize the chances that such a sentence, if challenged, will be upheld as a reasonable, individualized exercise of discretion.
Alan Vinegrad, former United States Attorney for the Eastern District of New York, is a partner at Covington & Burling. Douglas Bloom is an associate at the firm.
1. 454 F3d 1285 (11th Cir. 2006).
2. 455 F3d 1227 (11th Cir. 2006).
3. Crisp, 454 F.3d at 1291.
4. United States v. Thurston, 456 F.3d 211, 215 (1st Cir. 2006) (quoting United States v. Smith, 445 F.3d 1, 4 (1st Cir. 2006)) (internal quotations omitted).
5. Id. at 220; see also United States v. Moreland, 437 F.3d 424, 434 (4th Cir. 2006); United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006); United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005); United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005).
6. 446 F.3d 378 (2d Cir. 2006).
7. Thorn, 446 F.3d at 390.
8. 271 F.3d 387 (2d Cir. 2001).
9. Thorn, 446 F.3d at 391 (quoting United States v. Brady, 417 F.3d 326, 322-23 (2d Cir. 2005)).
10. 452 F.3d 127 (2d Cir. 2006).
11. Id. at 137 (quoting United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006)).
13. 448 F.3d 542 (2d Cir. 2006).
14. United States v. Toohey, 85 Fed. Appx. 263, 263-64 (2d Cir. 2004).
15. United States v. Toohey, 132 Fed. Appx. 883, 886-87 (2d Cir. 2005).
16. Toohey, 448 F.3d at 544.
17. 460 F.3d 337 (2d Cir. 2006).
19. 518 U.S. 81 (1996).
21. United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006).
22. United States Sentencing Commission, 2005 Sourcebook of Federal Sentencing Statistics, Tables 26 and 26A, available at http://www.ussc.gov/ANNRPT/2005/SBTOC05.htm.
23. Id. at Table 56A.

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Escuela Politécnica Nacional (Quito, Ecuador), Ecuador.
Universidad de las Fuerzas Armadas ESPE (Sangolquí, Ecuador), Ecuador.
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the United States, to redeem from a sale under a decree of foreclosure.
after a sale under a decree of foreclosure independently of a right given by statute.
The courts of the United States, sitting in equity, recognize a statutory right of redemption from a sale under a decree of foreclosure, and that the statute conferring it is a rule of property in the state.
The Civil Practice Act of Washington Territory of 1873 provides that all sales of real estate under execution except sales of an estate of less than a leasehold of two years unexpired term shall be subject to a right of redemption by the judgment debtor or his successor in interest within six months after confirmation of sale upon tender to the sheriff of the amount due with interest, and that the sheriff "may be required by order of the court or a judge thereof to allow such redemption if he unlawfully refuses to allow it." The freehold estate of the plaintiff below having been sold under a decree of foreclosure, he tendered to the sheriff the amount necessary to redeem it within six months from the date of the confirmation of the sale. The sheriff refused to receive the money. No application was made to the court or a judge thereof, under the statute, for an order upon the sheriff requiring him to allow the redemption, but abort nine years after the sale, the plaintiff below brought this suit to redeem. Held that, without deciding whether the statute of the territory is applicable to a sale under a decree of foreclosure, a court of equity should refuse aid to a party asserting under it a right of redemption who has neglected, at least without sufficient cause, before the expiration of six months from the confirmation of the sale, to invoke the authority of the proper court or judge to compel the recognition of such right by the officer whose duty it was, under the statute, to accept a tender made in conformity with law.
In equity. Defendants demurred to the bill. The demurrer was sustained in the district court, and that judgment was affirmed by the supreme court of the territory. Plaintiff appealed. The case is stated in the opinion of the Court.
"1. The person seeking to redeem shall give the purchaser or redemptioner, as the case may be, two days' notice of his intention to apply to the sheriff for that purpose. At the time and place specified in such notice, such person may redeem by paying to the sheriff the sum required. The sheriff shall give the person redeeming a certificate as in case of sale on execution, adding therein the sum paid on redemption, from whom redeemed, and the date thereof. A party seeking to redeem shall submit to the sheriff the evidence of his right thereto, as follows: 2. Proof that the notice required by this section has been given to the purchaser or redemptioner, or waived. 3. If he be a lien creditor, a copy of the docket of the judgment or decree under which he claims the right to redeem, certified by the clerk of the court where such judgment or decree is docketed, or, if he seeks to redeem upon mortgage, the certificate of the record thereof. 4. A copy of any assignment necessary to establish his claim, verified by the affidavit of himself or agent showing the amount then actually due on the judgment, decree, or mortgage. 5. If the redemptioner or purchaser have a lien prior to that of the lien creditor seeking to redeem, such redemptioner or purchaser shall submit to the sheriff the like evidence thereof, and of the amount due thereon, or the same may be disregarded."
In the same act is a separate chapter regulating foreclosures of mortgages. None of the provisions of that chapter, however, gives the right of redemption after a sale under a decree of foreclosure. But it is provided that "the payment of the mortgage debt with interest and costs at any time before sale shall satisfy the judgment." § 563.
of foreclosure. In support of this view, they cite decisions of the Supreme Court of California construing similar statutory provisions from which, it is claimed, the statute of Washington Territory was copied. Kent v. Laffan, 2 Cal. 595, (1852); Harlan v. Smith, 6 Cal. 173, (1856); McMillan v. Richards, 9 Cal. 365 (1858); Gross v. Fowler, 21 Cal. 395 (1863). On the other hand, it is insisted that the Civil Practice Act of 1873, so far as it related to sales under execution and to sales under decrees for the foreclosure of mortgages, was copied substantially from Iowa statutes, which, it is contended, did not give the right to redeem after sale under a foreclosure decree. Stoddard v. Forbes, 13 Ia. 296 (1862); Kramer v. Rebman, 9 Ia. 114 (1859).
"is that there should be declared the fact, nature, and extent of the default which constituted the breach of the condition of the mortgage, and which justified the complainant in filing his bill to foreclose it, and the amount due on account thereof, which, with any further sums subsequently accruing and having become due, according to the terms of the security, the mortgagor is required to pay, within a reasonable time, to be fixed by the court, and which if not paid, a sale of the mortgaged premises is directed."
In conformity with these principles, the Civil Practice Act of Washington Territory of 1873, in the chapter regulating the foreclosure of mortgages, expressly authorizes the mortgagor before the sale occurs to satisfy the judgment by paying the debt, with interest and costs. It is clear that the right to redeem after sale, wherever it exists, is statutory.
"where a sheriff shall wrongfully refuse to allow any person to redeem, his right thereto shall not be prejudiced thereby, and upon the submission of the evidence and the tender of the money to the sheriff as herein provided, he may be required, by order of the court or judge thereof, to allow such redemption."
Of this mode of enforcing his right to redeem the plaintiff chose not to avail himself. No reason is assigned why he did not do so. The complaint upon its face shows that before the tender to the sheriff, he had notice that the purchasers would contest his right to redeem. With knowledge of that fact, and notwithstanding the refusal of the sheriff to accept his tender, he made no application to the court or judge thereof for an order requiring that officer to allow the redemption. After resting in silence from November 10, 1875, until the institution of this suit, on the 15th of May, 1884, a period of nearly nine years, he prayed the assistance of a court of equity for the cancellation of the deeds executed to the several purchasers at the sheriff's sale.
of a court of equity. The interpretation we give to the statute is supported by the principle upon which courts of equity uniformly proceed, independently of any statute of limitations, of refusing relief to those who unreasonably delay to invoke their aid. Richards v. Mackall, 124 U. S. 183, 124 U. S. 187.
To avoid misapprehension, it is proper to observe that what we have said has reference only to cases arising under the Civil Practice Act of 1873. The present case is unaffected by the act of the territorial legislature approved February 3, 1886, permitting the judgment debtor, or his successor in interest, to redeem any real estate sold under execution of judgment or foreclosure of mortgage at any time within one year from the date of sale by paying the amount of the purchase money, with interest at the rate of one percentum per month thereon from the date of sale, together with the amount of any taxes the purchaser may have paid.


Appeal from the Judge of Compensation Claims, Doris H. Householder.
Margaret E. Sojourner of Frank Brightman, Orlando, for appellants.
William G. Berzak, Orlando, and Bill McCabe, Longwood, for appellee Green.
Thomas T. Clifford and John P. Daly of Rissman, Weisbert, Barrett Hurt, P.A., Orlando, for appellees Inland Materials and ERC.
Skip's Shoes and Western Boots and Traveler's Insurance Company have appealed from an order of the judge of compensation claims. The order held that any claim by Donald Green against appellees Inland Materials and ERC was barred by the statute of limitations, and that Skip's claim for reimbursement from Inland was therefore also time-barred. As a result, Skip's was found entirely responsible for the compensation and medical benefits also awarded by the order, which awards are not at issue herein. We reverse on the statute of limitations holding, and therefore do not reach appellants' arguments on other points.
Green was employed by Inland in January 1985, when he suffered a compensable injury to the anterior cruciate ligament of his right knee. Dr. Schaeffer was Green's authorized physician. After operating on the knee, he released Green to work on February 18, 1985. No compensation benefits were paid by Inland/ERC after February 21, 1985, but Dr. Schaeffer was never de-authorized. Green returned to work for Inland, but quit in February 1986 because the work was too hard on his knee. He thereafter went to work for Skip's.
During 1986, Green consulted Dr. Schaeffer in July, October and December for problems with his right knee. In October 1987, Dr. Schaeffer was authorized by Skip's/Traveler's to treat Green when he suffered a compensable injury to the lateral meniscus of his right knee. Finally, on April 13, 1988, Green injured the medial meniscus in that knee when it "locked up" while he was descending some stairs at home. Dr. Schaeffer operated in June 1988, when he discovered that complete reconstruction of the anterior cruciate ligament, originally injured in January 1985, had become necessary.
[w]hen there is any controversy as to which of two or more carriers is liable for the discharge of the obligations and duties of one or more employers with respect to a claim for compensation, remedial treatment, or other benefits under this chapter, . . . and if one of the carriers voluntarily . . . makes payments in discharge of such liability and it is finally determined that another carrier is liable for all or any part of such obligations and duties with respect to such claim, the carrier which has made payments . . . voluntarily . . . shall be entitled to reimbursement from the carrier finally determined liable. . . .
On March 29, 1989, Skip's/Traveler's filed a notice of controversy between carriers as to Inland/ERC pursuant to this provision, based on the original January 1985 injury. Inland/ERC moved to dismiss the reimbursement claim, and any claims by Green, alleging that "more than two years has elapsed since [Inland/ERC] . . . paid or provided any indemnity or medical benefits to the claimant [on February 21, 1985]." See § 440.19(1), Florida Statutes (the right to compensation for disability, rehabilitation, impairment, or wage loss shall be barred unless a claim therefore is filed within 2 years of the time of injury or within 2 years after the date of the last payment of compensation or after the date of the last remedial treatment furnished by the employer).
Green's claim for benefits against Skip's/Traveler's, the reimbursement claim, and Inland/ERC's motion to dismiss were heard at the same time. As to the motion to dismiss, Skip's/Traveler's argued that Green's 1986 visits to Dr. Schaeffer, whom Inland/ERC had never de-authorized, constituted "remedial treatment furnished by" Inland/ERC. Therefore, the statute of limitations should be calculated, not from February 1985, but from the last visit in December 1986. Skip's/Traveler's relied for this argument on McNeilly v. Farm Stores, Inc., 553 So.2d 1279 (Fla. 1st DCA 1989). McNeilly held that visits to a previously authorized, and never de-authorized, doctor during the two-year limitations period constitute "remedial attention furnished by the employer," where visits for continuing supervision and evaluation are reasonably necessary from a medical standpoint.
The evidence received on the "remedial attention" issue included two depositions of Dr. Schaeffer, taken in August 1988 and November 1989. In the first deposition, Schaeffer testified that none of Green's 1986 visits were "due to the original injury." In the second deposition, however, Schaeffer indicated that the January 1985 injury was "very significant," and left Green's knee prone to further insult and injury, specifically to giving way and locking. The judge relied on the first deposition to find that, as to Inland/ERC, the statute of limitations ran from the last payment of compensation on February 21, 1985, and that no other related activity occurred until Skip's March 1989 notice of controversy. The judge therefore concluded that, because Green was barred by the statute of limitations from making any claim against Inland/ERC, Skip's/Traveler's was barred from its reimbursement claim.
The vantage point of a reviewing court is not inferior to that of a judge of compensation claims in interpreting deposition evidence. Metropolitan Transit Authority v. Bradshaw, 478 So.2d 115, 116-17 (Fla. 1st DCA 1985); McCabe v. Bechtel Power Corp., 510 So.2d 1056, 1059 (Fla. 1st DCA 1987); Lerman v. Broward County Bd. of Co. Comm'rs., 555 So.2d 419, 423 (Fla. 1st DCA 1989); Severini v. Pan American Beauty School, Inc., 557 So.2d 896, 897 (Fla. 1st DCA 1990). We acknowledge that Dr. Schaeffer's statement in his August 1988 deposition would, if taken in isolation, support the judge's finding that none of Green's 1986 visits were related to the 1985 injury.
However, Dr. Schaeffer specifically testified in November 1989 that the January 1985 injury to Green's knee was "very significant," and left the knee prone to further insults and injury including giving way and locking. When the 1986 visits are examined in light of this information, a clear relationship to the January 1985 injury is shown. The July visit followed an undescribed incident in Green's home swimming pool. However, Schaeffer's office notes indicate that he found a connection between the complaint and the previous injury. Specifically, he noted Green's failure to perform previously prescribed knee exercises and instructed him to go "back" to doing them. In October, Green told Schaeffer that the knee had "locked up," the very occurrence to which the January 1985 injury had rendered him vulnerable. Finally, the December 1986 problem followed an incident at work.
Considering this evidence, together with Green's uncontradicted testimony that the knee was not "100%" when he returned to work for Inland/ERC in February 1985 and that he left in February 1986 because of knee trouble, we conclude that the 1986 visits to Dr. Schaeffer were related to the January 1985 injury. We therefore find that, under McNeilly, the last remedial attention afforded Green by Inland/ERC occurred in December 1986. The anterior cruciate ligament was next treated in June 1988, within the two year limitations period which commenced December 1986, and the statute would not have run again as to Inland until June 1990. Therefore, the limitations period had not run as to Green when Skip's/Traveler's filed its reimbursement claim in March 1989, and we need not decide the effect on Skip's claim had the statute run as to Green.
Reversed and remanded for further proceedings on the merits of the section 440.42(3) reimbursement claim filed by Skip's/Traveler's.
ERVIN and MINER, JJ., concur.


D.C. Law Library - § 46–205. Contents of support order.
↪ § 46–205. Contents of support order.
§ 46–204. Amendment of order establishing alimony, child support, or maintenance; award as money judgment.
(9) Notice that an order to withhold may be changed upon a motion by a party or the IV-D agency for a reapportionment of periodic arrears payments pursuant to § 46-208(c).
“(5) Notice that if the obligor is required under the support order to provide health insurance coverage for a child, the obligor’s employer will, upon receipt of notice of the health insurance coverage provision, enroll the child in health insurance coverage and deduct the premiums from the obligor’s earnings in accordance with §§ 1-307.41, 1-307.42, and subchapter II of this chapter.
For temporary amendment of section, see § 2(a) of the Child Support Enforcement Emergency Amendment Act of 1996 (D.C. Act 11-250, April 15, 1996, 43 DCR 2131),§ 2(a) of the Child Support Enforcement Congressional Review Emergency Amendment Act of 1996 (D.C. Act 11-304, July 31, 1996, 43 DCR 4474), and § 2(a) of the Child Support Enforcement Congressional Review Emergency Amendment Act of 1997 (D.C. Act 12-31, March 11, 1997, 44 DCR 1904).
For temporary amendment of section, see § 7(c) of the Child Support and Welfare Reform Compliance Emergency Amendment Act of 1997 (D.C. Act 12-222, December 23, 1997, 44 DCR 114).
For temporary amendment of section, see § 7(d) of the Child Support and Welfare Reform Compliance Congressional Review Emergency Amendment Act of 1998 (D.C. Act 12-309, March 20, 1998, 45 DCR 1923), § 7(d) of the Child Support and Welfare Reform Compliance Second Emergency Amendment Act of 1998 (D.C. Act 12-439, August 12, 1998, 45 DCR 6110), § 7(d) of the Child Support and Welfare Reform Compliance Legislative Review Emergency Amendment Act of 1998 (D.C. Act 12-503, October 27, 1998, 45 DCR 8495), and § 7(d) of the Child Support and Welfare Reform Compliance Second Congressional Review Emergency Amendment Act of 1998 (D.C. Act 12-600, January 20, 1999, 46 DCR 1239).
For temporary (90-day) amendment of section, see § 107(d) of the Child Support and Welfare Reform Compliance Emergency Amendment Act of 1999 (D.C. Act 13-126, August 4, 1999, 46 DCR 6606).
For temporary (90-day) amendment of section, see § 107(d) of the Child Support and Welfare Reform Compliance Legislative Review Emergency Amendment Act of 1999 (D.C. Act 13-177, November 2, 1999, 46 DCR 9678).
For temporary (90-day) amendment of section, see § 107(d) of the Child Support and Welfare Reform Compliance Congressional Review Emergency Amendment Act of 1999 (D.C. Act 13-241, January 11, 2000, 47 DCR 581).
For temporary (90 day) amendment of section, see § 108(d) of Child Support and Welfare Reform Compliance Congressional Review Emergency Amendment Act of 2001 (D.C. Act 14-5, February 13, 2001, 48 DCR 2440).
For temporary (90 day) amendment of section, see § 203(b) of Medical Support Establishment and Enforcement Emergency Amendment Act of 2002 (D.C. Act 14-485, October 3, 2002, 49 DCR 9631).
For temporary (90 day) amendment of section, see § 203(b) of Medical Support Establishment and Enforcement Congressional Review Emergency Amendment Act of 2002 (D.C. Act 14-600, January 7, 2003, 50 DCR 664).
For temporary (90 day) amendment of section, see § 203(b) of Medical Support Establishment and Enforcement Emergency Amendment Act of 2003 (D.C. Act 15-208, October 24, 2003, 50 DCR 9856).
For temporary (90 day) amendment of section, see § 203(b) of Medical Support Establishment and Enforcement Congressional Review Emergency Amendment Act of 2004 (D.C. Act 15-330, January 28, 2004, 51 DCR 1603).
For temporary (90 day) amendment of section, see § 3403(c) of Fiscal Year 2005 Budget Support Emergency Act of 2004 (D.C. Act 15-486, August 2, 2004, 51 DCR 8236).
For temporary (90 day) amendment of section, see § 3403(c) of Fiscal Year 2005 Budget Support Congressional Review Emergency Act of 2004 D.C. Act 15-594, October 26, 2004, 51 DCR 11725).
For temporary (90 day) amendment of section, see § 3(d) of Income Withholding Transfer and Revision Emergency Amendment Act of 2005 (D.C. Act 16-167, July 26, 2005, 52 DCR 7648).
For temporary (90 day) amendment of section, see § 3(d) of Income Withholding Transfer and Revision Congressional Review Emergency Amendment Act of 2005 (D.C. Act 16-200, November 17, 2005, 52 DCR 10490).
For temporary (225 day) amendment of section, see § 2(a) of Child Support Enforcement Temporary Amendment Act of 1994 (D.C. Law 10-210, March 14, 1995, law notification 42 DCR 1526).
For temporary (225 day) amendment of section, see § 2(a) of Child Support Enforcement Temporary Amendment Act of 1995 (D.C. Law 11-47, September 20, 1995, law notification 42 DCR 5506).
For temporary (225 day) amendment of section, see § 2(a) of Child Support Enforcement Temporary Amendment Act of 1996 (D.C. Law 11-148, May 20, 1996, law notification 43 DCR 4353).
For temporary (225 day) amendment of section, see § 7(b) of Child Support and Welfare Reform Compliance Temporary Amendment Act of 1998 (D.C. Law 12-210, April 13, 1999, law notification 46 DCR 3832).
For temporary (225 day) amendment of section, see § 107(d) of Child Support and Welfare Reform Compliance Temporary Amendment Act of 1999 (D.C. Law 13-57, March 7, 2000, law notification 47 DCR 1979).
For temporary (225 day) amendment of section, see § 107(d) of Child Support and Welfare Reform Compliance Temporary Amendment Act of 2000 (D.C. Law 13-207, March 31, 2001, law notification 48 DCR 3238).
For temporary (225 day) amendment of section, see § 203(b) of Medical Support Establishment and Enforcement Temporary Amendment Act of 2002 (D.C. Law 14-238, March 25, 2003, law notification 50 DCR 2751).
For temporary (225 day) amendment of section, see § 203(b) of Medical Support Establishment and Enforcement Temporary Amendment Act of 2003 (D.C. Law 15-84, March 10, 2004, law notification 51 DCR 3376).
“Sec. 6. Contents of support order.


D.C. Law Library - § 22–3242. Penalties for forgery.
↪ § 22–3242. Penalties for forgery.
§ 22–3242. Penalties for forgery.
(7) A written instrument having a value of $10,000 or more.
(3) A written instrument having a value of $1,000 or more.
(c) Any person convicted of forgery shall be fined not more than the amount set forth in § 22-3571.01 or imprisoned for not more than 3 years, or both, in any other case.
This section is referenced in § 16-4901.
D.C. Law 18-377, in subsec. (b)(3), substituted “$1,000” for “$250”.
The 2013 amendment by D.C. Law 19-317 substituted “not more than the amount set forth in § 22-3571.01” for “not more than $10,000” in (a), for “not more than $5,000” in (b), and for “not more than $2,500” in (c).
Forgery of authorization for medical consent for a minor by an adult caregiver, see § 16-4901.
For temporary (90 day) amendment of section, see § 512(g) of Public Safety Legislation Sixty-Day Layover Emergency Amendment Act of 2010 (D.C. Act 18-693, January 18, 2011, 58 DCR 640).
For temporary (90 day) amendment of section, see § 512(g) of Public Safety Legislation Sixty-Day Layover Congressional Review Emergency Amendment Act of 2011 (D.C. Act 19-45, April 20, 2011, 58 DCR 3701).
For temporary (90 days) amendment of this section, see § 205(s) of the Criminal Fine Proportionality Emergency Act of 2013 (D.C. Act 20-45, April 1, 2013, 60 DCR 5400, 20 DCSTAT 1300).


The G. Ross Bell Youth Detention Center is within the jurisdiction of the Jefferson County Juvenile Justice System located at 716 Richard Arrington Jr., Blvd North, Birmingham, AL.
The Birmingham Juvenile Intake office is staffed with six juvenile probation officers that have been sworn as magistrates. Their statutory function is to initiate juvenile cases according to the Alabama Rules of Juvenile Procedure, but they also receive criminal complaints and assist the public in filing of civil petitions.
The magistrates are on duty at the Family Court Courthouse and the Bessemer Courthouse during county office hours. At least one magistrate is on duty or on call at the G- Ross Bell Youth Detention Center at all other times for emergencies. For further information please contact the Intake Office, in Birmingham at 205-325-5454, in Bessemerat 205-744-3501, and on nights and weekends at 205-325-5805.
§ Delinquent, where a child is alleged to have committed a crime. Code, § 12-15-114(a)).
§ Judicial consent for a child's marriage, employment, enlistment or withdrawal from school. Code, § 12-15-115(a) (2).
§ Interstate Compact on Juveniles, for interstate placement of delinquent children or the return of juvenile interstate runaways, escapees or absconders. Code, § 12-15-114(c) (1) & 44-2-1 el seq.
§ Involuntary commitment of a child or minor to the Alabama Department of Mental Health and Mental Retardation. Code, §§ 12-15-115(a) (3) & 12-15-90.
§ Termination of parental rights to a child. Code, § 12-15-114(c) (2) & 26-18-1 el seq.
§ Emergency removal or medical treatment for a child. Code, §12-15-115(b) (I) Violation of a child's rights in public school proceedings. Code, § 12-15 115(b) (2).
G. Ross Bell Youth Detention Center publishes the names of their inmates currently in their facility in Alabama. Your search should start with this locator first to see if your loved one is there.
The G. Ross Bell Youth Detention Center is within the jurisdiction of the Jefferson County Juvenile Justice System located at 716 Richard Arrington Jr., Blvd North, Birmingham, AL. We encourage you to review these questions and answers! If you have a question, let us know and we will answer it for you.
G. Ross Bell Youth Detention Center located in Birmingham, AL and is classified as low security juvenile detention center within the county of Jefferson, AL Juvenile Justice System.
All of the information you could ever need to know is below, patiently scroll the page and get as much information about G. Ross Bell Youth Detention Center that you'd ever want to know. If there is anything that you were looking for, but don't see, please email us at aid@inmateaid.com.


Haller & Colvin, P.C. Eilbacher Scott, P.C.
Appellant-plaintiff Chemical Waste Management of Indiana (CWMI) appeals the trial courts denial of its motion for summary judgment on its taxpayer declaratory judgment action. CWMI also appeals the trial courts denial of its Ind.Trial Rule 41(B) motion on its annexation remonstrance petition, and contends that the trial court misapplied Ind. Code § 36-4-3-13(d)(1) and (5), the statutes governing the provision of services to the annexation area, to the undisputed facts of this case. According to CWMI, the trial court erred in denying its summary judgment motion because the appellee-plaintiff, City of New Havens (New Haven) annexation ordinance contained illegal effective dates that rendered the annexation clearly or patently illegal, without jurisdiction, and an abuse of discretion. CWMI contends that the trial court erred in denying CWMIs T.R. 41(B) motion and in the trial courts application of I.C. § 36-4-3-13(d)(1) and (5) because New Haven failed to develop a plan to provide capital services to the annexation area consistent with the requirements of the annexation statute.
The undisputed facts are that the New Haven Common Council passed and adopted Annexation Ordinance X-98-16 on October 15, 1998. Section three of the Annexation Ordinance stated: Said annexed territory shall become part of the City of New Haven on December 1, 1998. Record at 68. At the same time that the ordinance was passed, the Council adopted Resolution R-98-16 approving the fiscal plan for the proposed annexed area (annexation area). The fiscal plan set forth New Havens proposal for providing noncapital and capital improvement services to the annexation area.
The annexation area consists of approximately eight parcels containing eighty-two acres of mostly vacant agricultural land located southwest of New Havens current municipal boundaries. Approximately ninety-percent of the land use of the annexation area is agricultural and ten percent is residential, with the latter comprising three single-family homes. The annexation area is zoned for industrial, commercial, and business uses, and New Havens policy was to develop it for industrial use. CWMI owns six of the eight parcels of real estate in the annexation area. Moreover, CWMI owns real estate within the municipal jurisdiction of New Haven and is, therefore, a taxpayer of New Haven.
New Haven designated territory located north of the annexation area as the comparable area in its fiscal plan. The comparable area and annexation area both have low population density, gently sloping topography, and agricultural and residential patterns of land use. The comparable area is principally agricultural land with some residential uses in the form of single-family homes and farm structures. Neither the comparable area nor the annexation area contain mobile homes, commercial or industrial buildings, institutional buildings, schools, or multi-family dwellings.
The comparable area contains a public roadway known as Seiler Road. Seiler Road has a paved service, which existed before the comparable areas annexation by New Haven. R. at 592, 725. The major roadway in the annexation area is Paulding Road, which has a gravel surface. There are no other gravel roads within the corporate municipal boundaries of New Haven. Seiler Road services a residential subdivision east of the comparable area, whereas Paulding Road is one of the least traveled roads in the New Haven area and is presently used for agricultural purposes. See footnote The comparable area has access to fire hyrdrants located north and south of Seiler Road, and there are municipal water lines close to the comparable area. In contrast, there are no fire hydrants in the immediate proximity of the annexation area.
Both the comparable area and the annexation area lie within Fort Waynes water and sewer contract service area. New Haven has a contractual agreement with Fort Wayne that would permit New Haven to provide residential water service to the comparable area. This service is possible because there are municipal water lines in the vicinity of the comparable area. Nevertheless, New Haven has not extended residential water service to the comparable area. There are no municipal water lines located near the annexation area and New Haven does not have a contractual arrangement with Fort Wayne permitting New Haven to provide residential water service to that area.
New Havens fiscal plan for the annexation area sets forth what capital and non-capital services will be provided to that area. According to the fiscal plan, New Haven will provide equivalent non-capital services to both the comparable area and the annexation area, including fire protection and emergency medical services. With respect to the extension of capital services, the fiscal plan represents a definite policy of extending capital services into the annexation area on an as-needed basis. Under this policy, New Haven will not extend capital services for industrial development until it receives firm commitments for development. New Haven applies the same policy to the comparable area. The fiscal plan does not provide for the extension of residential water service to the annexation area and, thus, the estimated cost of water and sewer capital improvement services for that area is zero dollars. New Haven employed the same analysis in estimating zero dollars in capital improvement service costs for fire hydrants. The fiscal plan also does not include any plan or cost projections for capital improvement services to upgrade Paulding Road to a paved surface.
On December 19, 1998, CWMI filed a statutory remonstrance against the annexation ordinance and a taxpayer declaratory judgment action seeking to have the ordinance declared illegal. On March 25, 1999, CWMI filed a motion for summary judgment on its taxpayer declaratory judgment action, seeking to have the annexation ordinance declared void. The basis of CWMIs summary judgment motion was that the annexation ordinance contained an illegal effective date that rendered the annexation clearly or patently illegal, without jurisdiction, and an abuse of discretion. In response, on May 7, 1999, New Haven filed a cross motion for partial summary judgment, asserting that an erroneous effective date cannot render the ordinance itself invalid as that date is mere surplusage and the offending provisions are completely severable from the remainder of the ordinance.
The trial court denied CWMIs summary judgment motion and granted New Havens motion for partial summary judgment on September 20, 1999. An evidentiary hearing on CWMIs remonstrance petition and its declaratory judgment action commenced on October 11, 1999. After New Haven presented its evidence, CWMI moved the court for judgment on its remonstrance petition pursuant to T.R. 41(B).See footnote The trial court denied CWMIs T.R. 41(B) motion. On May 18, 2000, the trial court published its findings of fact and conclusions of law and entered judgment in favor of New Haven on CWMIs remonstrance petition and CWMIs taxpayer declaratory judgment action. Shortly thereafter, on June 19, 2000, CWMI filed a motion to correct errors with the trial court. The trial court denied this motion on July 27, 2000. CWMI now appeals.
The trial court entered special findings of fact and conclusions of law pursuant to Ind.Trial Rule 52. Under that rule, issues covered by the special findings will not be disturbed unless clearly erroneous. T.R. 52(A); Paulson v. Centier Bank, 704 N.E.2d 482, 489 (Ind. Ct. App. 1998), trans. denied. We determine whether the evidence supports the findings and the findings support the judgment, and we disturb the judgment only where there is no evidence supporting the findings or the findings fail to support the judgment. Id.
CWMI contends that the trial court erred in denying its summary judgment motion on its taxpayer declaratory judgment action. Specifically, CWMI contends that because the effective date of New Havens annexation ordinance and the effective date of the actual annexation fall within the sixty-day remonstrance period provided for by the annexation statute, the annexation ordinance is void ab initio and the annexation is illegal.
We note that the standard of review of a summary judgment is well settled. This court applies the same standard as the trial court. USA Life One Ins. Co. v. Nuckolls, 682 N.E.2d 534, 537 (Ind. 1997). We do not weigh the evidence designated by the parties. Instead, we liberally construe the evidence in the light most favorable to the non-moving party. Id. Summary judgment is appropriate only if the pleadings and the evidence show both the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C); Butler v. City of Indianapolis, 668 N.E.2d 1227, 1228 (Ind. 1996). Where material facts conflict, or undisputed facts lead to conflicting material inferences, summary judgment is inappropriate. Id.
may only be allowed to proceed where the actions of the city common council in annexing specific territory are clearly or patently illegal, or where the council acts without jurisdiction over the subject matter, or where there is an unmistakable abuse of discretion in the councils decision to annex, or where wastage of public funds is present or imminent and is something more than the furnishing of the normal services and facilities attendant legal annexation.
Montagano v. City of Elkhart, 149 Ind. App. 283, 286, 271 N.E.2d 475, 480-81 (1971).
As a threshold matter, we must address New Havens contention that CWMI lacks standing to bring a taxpayer declaratory judgment action. See footnote According to New Haven, one who qualifies as a remonstrator may not also bring a taxpayer action and, therefore, CWMI lacks standing to pursue its taxpayer declaratory judgment claim. Appellees brief at 31.
In addressing New Havens contention, we initially note that there are only two methods of challenging a citys annexation. Deaton v. City of Greenwood, 582 N.E.2d 882, 885 (Ind. Ct. App. 1991). The first, remonstrance, is the exclusive manner for landowners [of the annexation area] to obtain relief from annexation proceedings. Id. The second, a declaratory judgment suit, is available only to taxpayers of the annexing city. Id.
New Haven relies upon Montagano, 149 Ind. App. 283, 271 N.E.2d 475 and City of Muncie v. Lowe, 705 N.E.2d 528 (Ind. Ct. App. 1999), trans. denied, for its assertion that CWMI lacks standing to bring both a taxpayer declaratory judgment action and a remonstrance claim. The plaintiffs in Montagano were resident taxpayers of the annexing city but did not own land in the annexation area. 149 Ind. App. at 285, 271 N.E.2d at 477. The issue before our supreme court was whether resident taxpayers of a city who are neither residents nor owners of land in the area to be annexed may challenge an annexation ordinance by a taxpayers [declaratory judgment] suit. Id. at 477. The court concluded that the plaintiffs had standing to bring their claim. Id. at 480. In direct contrast to Montagano, the plaintiffs in Lowe were property owners in the annexation area but were not taxpayers of the annexing city. 705 N.E.2d at 533. This court observed that under these circumstances, the plaintiffs exclusive means of challenging the annexation was to file a remonstrance petition. Id. Inasmuch as the plaintiffs in Montagano and Lowe were not qualified as both remonstrators and city taxpayers, we reject New Havens assertion that those cases stand for the proposition that remonstrance is the exclusive avenue of relief for one who fits both criteria.
Here, CWMI owns property in the annexation area as well as other real estate within New Havens municipal jurisdiction. R. at 408. As such, CWMI qualifies as both a remonstrator and as a taxpayer of the annexing city. Because neither statutes nor case law establish that a remonstrance petition and a taxpayer declaratory judgment action are mutually exclusive, we conclude that CWMI has standing to bring both causes of action.
CWMI contends that the illegal annexation dates contained in Section three and Section four See footnote of the New Haven Ordinance render the entire ordinance null and void. Appellants brief at 15-17. Section three contains the effective date of the annexation and Section four establishes the effective date of the ordinance. According to CWMI, because the effective date of New Havens annexation ordinance and the effective date of the actual annexation fall within the sixty-day remonstrance period provided for by the annexation statute, the annexation ordinance is void ab initio and the annexation is illegal.
After an ordinance is adopted under section 3, 4, or 5 of this chapter, it must be published in the manner prescribed by IC 5-3-1. Except as provided in subsection (b) or (c), in the absence of remonstrance and appeal under section 11 or 15.5 of this chapter, the ordinance takes effect at least sixty (60) days after its publication and upon the filing required by section 22(a) of this chapter.
I.C. § 36-4-3-7(a) (emphasis supplied). New Havens annexation ordinance was published on October 21, 1998. Thus, according to I.C. § 36-4-3-7(a), absent any remonstrance and appeal, the ordinance could come into effect, at the earliest, on December 21, 1998.
However, Section four of the annexation ordinance states: This Ordinance shall be in full force and effect from and after its passage by the Common Council, approval by the Mayor and legal publication required by law. R. at 68. The ordinance was passed and adopted by the Common Council and approved by the Mayor on October 15, 1998, and became effective according to the language in Section four on the publication date of October 21, 1998. As such, the annexation ordinance came into effect by its own terms within sixty days of publication in contravention of I.C. § 36-4-3-7(a) and before expiration of the mandatory sixty-day remonstrance period. According to CWMI, the ordinance is void ab initio because New Haven does not have the power or jurisdiction to enact an annexation ordinance containing an effective date that falls within the sixty-day remonstrance period provided for by the annexation statute.
Similarly, CWMI asserts that New Havens annexation of the Annexation area is void because Section three of the ordinance illegally expedites the effective date of annexation before the expiration of the remonstrance period. Appellants brief at 21. I.C. § 36-4-3-7(a) states that an annexation ordinance is effective at least sixty days after its final publication absent a remonstrance proceeding, and I.C. § 36-4-3-8, permits a municipality to delay the effective date of the annexation beyond the remonstrance period. Drake v. City of Fort Wayne, 543 N.E.2d 1145, 1149 (Ind. Ct. App. 1989), disapproved of in part on other grounds by City of Hobart v. Chidester, 596 N.E.2d 1374, 1378 (Ind. 1992). Moreover, I.C. § 36-4-3-14 provides that pending [any] remonstrance, and during the time within which the remonstrance may be taken, the territory sought to be annexed is not considered a part of the municipality. Thus, the earliest that New Havens annexation could become legally effective was after expiration of the sixty-day remonstrance period on December 21, 1998, but New Haven could designate a later effective date. However, Section three of New Havens annexation ordinance states that the annexed area shall become part of the City of New Haven on December 1, 1998, which is twenty days before the legally permissible effective date. R. at 68. Thus, Section three contains an illegal effective date for the annexation.
In addressing whether the illegal effective dates render the entire annexation ordinance invalid, we note that an ordinance is presumed valid. City of Fort Wayne v. Kostopoulos, 704 N.E.2d 1069, 1070 (Ind. Ct. App. 1999). We also note that rules relating to statutory construction are to be applied in construing ordinances. Hobble ex rel. Hobble v. Basham, 575 N.E.2d 693, 699 (Ind. Ct. App. 1991). A basic rule of construction is that if one section of a city ordinance or legislative act can be separated from the other sections and upheld as valid, it is the duty of the court to do so. Id. Where the invalid portion is distinctly separable from the remainder and the remainder is in itself complete, sensible, and capable of execution, the invalid portion may be rejected and the remainder permitted to stand as valid. Id. However, where the invalid provisions of an ordinance are not distinct and separable from the other portions of the ordinance, the entire ordinance is void. S. Ind. Ry. Co. v. City of Bedford, 165 Ind. 272, 274 75 N.E. 268, 269 (1905).
Here, the annexation statute contains no language mandating the inclusion of a specific effective date and, therefore, New Havens inclusion of an effective date was purely discretionary. See I.C. §§ 36-4-3-1 to 22. Absent a specific effective date in the annexation ordinance, the annexation would take effect pursuant to the terms of the statute. Specifically, I.C. § 36-4-3-7(a) establishes that, absent a remonstrance, the ordinance will take effect at least sixty (60) days after its publication and upon the filing required by section 22(a) of this chapter. Similarly, I.C. § 36-4-3-14 establishes that the annexation becomes effective after the remonstrance period or, if a remonstrance is pending, when the remonstrance is resolved. Inasmuch as the statute provides a default mechanism for determining the effective date of the ordinance and annexation, if the section of the ordinance that contains the illegal effective date can be separated from the other sections, that section will be rejected and the ordinance and annexation will be upheld as valid. See Hobble, 575 N.E.2d at 699.
Nevertheless, CWMI asserts that, when a city includes effective dates that fail to comply with the annexation statute, the whole ordinance fails of its purpose and is void. Appellants brief at 23. However, CWMI has failed to establish why separating the invalid provisions will not cure the defect, and the cases it cites in support of its argument are inapposite to the case at bar. Specifically, CWMI relies upon Southern Indiana Railway Co. v. City of Bedford, 165 Ind. 272, 75 N.E. 268 (1905), City of Indianapolis v. College Park Land Co., 187 Ind. 541, 118 N.E. 356 (1918), and Lohm v. State, 177 Ind. App. 488, 380 N.E.2d 561 (1978).
The ordinance at issue in Southern Indiana Railway Co., is distinguishable from the New Haven ordinance at issue here, inasmuch as the ordinance in Southern Indiana Railway Co., contained no separate provisions and was, therefore, incapable of severance. In City of Indianapolis, 187 Ind. at 541, 547, 118 N.E. 356, 359 (1918), our supreme court addressed, among other things, the validity of a 1915 city ordinance pertaining to the provision of gas and water services to the municipality. The court determined that if the laying of service pipes abutting property with gas mains could not be enforced under the provisions of the ordinance at issue, the whole ordinance failed of its purpose. Id. The invalid provision of the ordinance could not be separated from the whole to give effect to the purpose of the ordinance and, thus, the court concluded that the entire ordinance was void. Id. Here, the purpose of the ordinance is the annexation of designated property by New Haven. The annexation area and the Councilmanic District to which it will be assigned are clear from Sections one and two of the ordinance, and the effective annexation date is ascertainable by the terms of the statute. Thus, deletion of the invalid portion of the New Haven ordinance does not defeat the objective of the ordinance.
CWMI cites Lohm, 177 Ind. App. 488, 380 N.E.2d 561, to support its argument that, once New Haven voluntarily included an effective date in its annexation ordinance, it was required to choose a date beyond the sixty-day remonstrance period. Appellants brief at 24. However, Lohm holds that a statute containing an invalid effective date cannot take effect until after the filing in the counties as required by the Indiana Constitution. Lohm, 177 Ind. App. at 491, 380 N.E.2d at 565. It does not stand for the proposition that an improper effective date renders an entire statutory enactment void ab initio.
Thus, we conclude that upon applying the doctrine of severability to separate Sections three and four from the ordinance, the remainder of the ordinance is sensible and capable of execution. Accordingly, the ordinance is valid and the trial court did not err. See S. Ind. Ry. Co., 165 Ind. at 274, 75 N.E. at 269.
CWMI contends that the trial court erred in denying its T.R. 41(B) motion See footnote and in its application of I.C. § 36-4-3-13(d)(1) and (5), because New Haven failed to develop a plan to provide capital services to the annexation area consistent with the requirements of the annexation statute. Specifically, CWMI asserts that nothing in § 36-4-3-13(d)(1) and (d)(5) allows New Haven to arbitrarily provide capital improvement services on an as needed basis and to provide a cost estimate of zero dollars for the provision of municipal water service and fire hydrants. Appellants brief at 12-13. CWMI also contends that New Haven must provide the annexation area with a paved road and accessibility to fire hydrants and municipal water service in order to comply with the requirement of I.C. § 36-4-3-13(d)(5) that like services be provided to like areas. Appellants brief at 12.
In addressing CWMIs contention, we initially note that when reviewing the denial of a T.R. 41(B) motion, this court will reverse the trial court only where the evidence is without conflict and points unerringly to a conclusion different from that reached by the trial court. Monk v. Peabody Coal Co., 530 N.E.2d 761, 763 (Ind. Ct. App. 1988). In other words, parties must show that they are entitled to judgment as a matter of law. Id.
We also note that the power of annexation is fundamentally legislative, and the judicial role in annexation cases is limited to that prescribed by statute. Chidester v. City of Hobart, 631 N.E.2d 908, 910 (Ind. 1994) (Chidester II). The burden is on the municipality at the remonstrance hearing to demonstrate its compliance with the statute. Id. This courts review is limited to ensuring that the municipality has not exceeded its authority and that the statutory conditions for annexation have been satisfied. Id. We do not reweigh the evidence; rather, we consider the evidence most favorable to the judgment of the trial court with all reasonable inferences therefrom. Id. However, we review issues of law de novo. Rogers v. Municipal City of Elkhart, 688 N.E.2d 1238, 1240 (Ind. 1997). For remonstrators to prevail on appeal from an adverse trial court judgment, there must be a complete failure of proof with regard to the determinant at issue. Id.
(1) The cost estimates of planned services to be furnished to the territory to be annexed.
(5) That services of a capital improvement nature, including street construction, street lighting, sewer facilities, water facilities, and stormwater drainage facilities, will be provided to the annexed territory within three (3) years after the effective date of the annexation, in the same manner as those services are provided to areas within the corporate boundaries, that have similar topography, patterns of land use, and population density, and in a manner consistent with federal, state, and local laws, procedures, and planning criteria.
The main concern of Ind.Code § 36-4-3-13(d)(4) and (5) is ensuring that services provided to the annexed territory are equivalent to services existing in the City. The qualification in (d)(4) and (5), that services be equivalent to those in the City with similar topography, patterns of land use, and population density, provides a guidepost for cities in determining what services should be provided to the annexed territory. It would be unreasonable to require the City to provide services to the annexed territory that are not needed because of differences in topography, patterns of land use, and population density. For example, storm drains may be provided in neighborhoods which are very flat and have no natural drainage; such drains are not often provided in areas where the topography provides natural drainage. The idea is to provide like services to like areas.
Chidester I, 596 N.E.2d at 1378.
CWMI relies upon our supreme courts opinion in Chidester I, for its contention that New Havens policy of providing the annexation area with certain capital improvement services on an as needed basis is inconsistent with the requirements of I.C. § 36-1-3-13(d)(5). Appellants brief at 38. In that case, our supreme court determined that I.C. § 36-1-3-13(d)(5) requires the city to spell out what services it plans to provide to the annexed area. Chidester I, 596 N.E.2d at 1377. According to CWMI, this requirement comports with the purpose of the fiscal plan, which is to: 1) allow landowners to make an intelligent decision about remonstrating against an annexation; 2) allow the trial court to review the annexation to ensure that the municipality is making more than vague promises regarding the municipal services to be provided; and 3) provide a basis for landowners to enforce a municipalitys promise of services after the annexation is complete. Appellants brief at 38; see Chidester I, 596 N.E.2d at 1378.
In Chidester I, the issue before our supreme court was whether comparisons between the annexation area and the comparable area must be set out in the citys fiscal plan. 596 N.E.2d at 1377. It was not until this case came before the court for the second time, in Chidester v. City of Hobart, 631 N.E.2d 908, 910 (Ind. 1994) (Chidester II), that the court was called upon to decide whether the citys fiscal plan met the statutory requirement of providing capital and non-capital services to the annexation area equivalent to those provided in the comparable areas. In addressing this issue, our supreme court accepted the trial courts interpretation of I.C. §36-4-3-13(d)(5), as requiring that the city employ the same policy with regards to the capital services in the annexed area that it uses in the comparable area. Id. at 912 (emphasis supplied). Specifically, the court considered Hobarts policy with respect to the provision of sanitary sewers in the annexation area. Id. It observed that many residential areas in the City of Hobart were on a septic system or served by private sanitary facilities; that Hobarts policy was that if it was a large lot, relatively low density residential development, it would remain on a septic system unless the developer provided a sewer, and that the same policy had been adopted for the annexation area. Id. The court concluded that this uniform policy fulfilled the requirements of I.C. § 36-4-3-13(d)(5) that services be provided to the annexed area in the same manner as they are provided to the comparable area. Id.
In the case at bar, New Haven has adopted a policy of extending capital services into the annexation area on an as-needed basis. Under this policy, New Haven will not extend capital services for industrial or other development until it receives firm commitments for development. New Haven apparently employs this policy because proposed development plans do not always come to fruition, because the type and extent of the services required often depends upon the nature and scope of the development, and because it is a waste of municipal resources to provide services that are not required. R. at 1090-91, 1511. The fiscal report and evidence establishes that New Haven also makes capital improvements on an as needed basis in the comparable area. R. at 612-13, 724-25. As New Haven applies a uniform policy for the provision of capital services to both the annexation area and the comparable area, we conclude that New Haven has fulfilled the requirements of I.C. § 36-4-3-13(d)(5) that services be provided to the annexed area in the same manner as they are provided to the comparable area. See id. We also conclude that New Haven is not required to provide a cost estimate greater than zero for capital improvements that are not needed in the annexation area.
Nevertheless, CWMI contends that New Havens policy of providing capital services as needed, is insufficient to fulfill the requirements of I.C. § 36-4-3-13(d)(5) and the enforcement purpose of the statute because CWMI has no ability to enforce such an illusory promise. Appellants brief at 41; Appellants reply brief at 1. However, New Havens evidence at trial established that New Haven makes its determination on the basis of a firm commitment for development, the nature of that development, and the results of feasibility studies regarding the type and scope of services required. R. at 1091-93, 1502, 1511. Accordingly, New Havens policy is reasonable and sufficiently definite to satisfy the requirements of the statute.
CWMI also contends that New Haven must provide the annexation area with a paved road and accessibility to fire hydrants and municipal water service in order to comply with the requirement of I.C. § 36-4-3-13(d)(5) that like services be provided to like areas. Appellants brief at 12-13. In addressing this contention, we are mindful that the New Havens determination of which capital improvement services are required must be judged as of the date of passage of the annexation ordinance. § 36-4-3-13(d).
According to CWMI, because Seiler Road is paved, New Haven is obliged to upgrade Paulding Road from a gravel to a paved surface in order to comply with the like services requirement of § 36-4-3-13(d)(5). However, it is undisputed that Seiler Road services a residential subdivision, whereas Paulding Road is presently used only for agricultural services and is one of the least traveled roads in the New Haven area. R. at 1025-26. See footnote Professor Kelly, CWMIs planning expert, conceded that a gravel road is perfectly adequate for agricultural uses. R. at 1373. He also testified that the gravel surface is adequate to service the three dwellings presently located in that area. R at 1375. Further, it is undisputed that there are no present plans for industrial or other development in the annexation area, Appellants App. at 15, and, while the annexation area is zoned for industry, New Havens policy and plan for extending capital services to that area is based upon concrete and firm development plans, not upon zoning. Thus, when the annexation ordinance was passed, an upgraded road service was not warranted in the annexation area. Therefore, New Haven did not violate I.C. § 36-4-3-13(d)(1) and (5) by failing to provide for an upgrade to Paulding Road in its fiscal plan.
CWMI also asserts that New Haven must provide municipal water service and fire hydrants to the annexation area, because such services are available in the annexation area. In its fiscal plan, New Haven promises to extend the current water services as needed due to industrial or other development. Appellants App. at 24. The record reveals that there were no existing plans for industrial or other development in the annexation area at the time that the ordinance was passed. Appellants App. at 15. Further, while CWMI asserts that municipal water service is available to the comparable area, the municipal water lines lie in the vicinity of the comparable area and are used to supply nearby fire hydrants, but they have not been extended to the residences in that area. R. at 1339, 1511. Moreover, while fire hydrants are located to the north and east of the comparable area, they are not there to serve that locale. Indeed, Chief Bennett of the New Haven Fire Department testified that it was more efficient to use the tanker trucks to suppress a fire in the comparable area than to hook up to the hydrants. R. at 675. Thus, with respect to municipal water and fire hydrants, the annexation area is not being deprived of capital services that are being provided to the comparable area and there is no current need for those services in the annexation area. Accordingly, New Haven is under no obligation to provide for the extension of municipal water and fire hydrants to the annexation area in its fiscal plan or to include a cost estimate greater than zero for those services. Thus, the trial court did not err in denying CWMIs T.R. 41(B) motion and in its application of I.C. § 36-4-3-13(d)(1) and (5).
In conclusion, we hold that the trial court did not err in denying CWMIs motion for summary judgment on its taxpayer declaratory judgment action. We also hold that the trial court did not err in denying CWMIs T.R. 41(B) motion regarding its remonstrance petition, and in its application of I.C. § 36-4-3-13(d)(1) and (5).
Footnote: Fewer than one hundred vehicles travel upon Paulding Road in a twenty-four hour period. R. at 1509.
After the plaintiff or party with the burden of proof on an issue, in an action tried by the court without a jury, has completed the presentation of his evidence thereon, the opposing party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the weight of the evidence and the law there has been shown no right to relief.
Footnote: For its part, CWMI argues that New Haven may not challenge its standing to bring a taxpayer declaratory judgment action because New Haven failed to raise this issue before the trial court. However, standing may be raised at any point during the litigation and, if not raised by the parties, it is the duty of the reviewing court to determine the issue sua sponte. In re C.W., 723 N.E.2d 956, 962 (Ind. Ct. App. 2000).
Footnote: The record reveals that CWMI abandoned its argument with respect to Section four at the trial court level. Specifically, while CWMI raised this issue during the summary judgment hearing, in its Proposed Findings of Fact, Conclusions of Law, and Order on Motion for Summary Judgment it proposed findings only with respect to Section three. R. at 128-35. New Haven noted in its Proposed Findings that CWMI had abandoned arguments as to Section four and did not address Section four in its Proposed Findings. R. at 150-51 n.1. Consequently, the trial court did not address Section four in its findings of fact and conclusions of law. App. at 1; R. at 171-77. CWMI had ample opportunity to request that the trial court address Section four of the ordinance and amend its order accordingly, but it did not do so. Moreover, CWMI did not raise any error with respect to consideration of Section four in its Motion to Correct Error and To Amend or Make New Findings of Fact. R. at 444. By failing to submit proposed findings with respect to its Section four argument to the trial court, CWMI invited any error with respect to that issue. A party may not take advantage of an error which he commits, invites, or which is the natural consequence of his own neglect or misconduct. Stolberg v. Stolberg, 538 N.E.2d 1, 5 (Ind. Ct. App. 1989). Invited error is not subject to review by this court and CWMI has waived this issue for appellate review. See id. However, inasmuch as our disposition of this issue is inseparable from our disposition of the issue regarding Section three of the annexation ordinance, we will address CWMIs argument with respect to Section four.
Footnote: New Haven asserts that CWMI waived the issue sought to be raised under T.R. 41(B) because it did not present this issue to the trial court. Appellees brief at 9-10. The issue raised on appeal, is whether CWMI was entitled to judgment as a matter of law because the undisputed evidence shows that there are no comparable areas in New Haven served by a gravel road or that are without access to residential water and fire hydrants. Appellants brief at 36-37. However, Professor Eric Kelly testified that New Haven was not proposing to provide the annexation area with the same level of municipal services existing in the comparable area, namely a paved street and access to residential water service and fire hydrants. R. at 1314-34. In addition, at the conclusion of New Havens case-in-chief, CWMI moved to dismiss the case because New Haven had failed to satisfy I.C. § 36-4-3-13(d)(5), by providing the same level of services to the annexation area, as provided to the comparable area, including the road, residential water, and fire hydrants. R. at 1501-1503. CWMI also made the same argument in the post-trial brief it filed with the trial court. R. at 390. [W]here an opposing party has unequivocal notice of an issue, that issue may be considered on appeal. Ansert ex rel. Ansert v. Ind. Farmers Mutual Ins. Co., 659 N.E.2d 614, 617 (Ind. Ct. App. 1995). As New Haven had unequivocal notice of this issue through CWMIs evidence at trial, its motion to dismiss, and its post-trial brief, this issue is not waived.
Footnote: We also note that Seiler Road was paved before the comparable area was annexed by New Haven. R. at 725. Thus, it was not paved as the result of any determination of need by New Haven. New Havens fiscal plan for the comparable area included the maintenance of Seiler Road. R. at 725. Similarly, New Havens fiscal plan for the annexation area provides for the maintenance of Paulding Road. R. at 613.