Texas appellate court upholds release for claims of gross negligence in trampoline accident that left plaintiff a paraplegic.
However, the decision is not reasoned and supported in Texas by other decisions or the Texas Supreme Court.
Defendant: Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc.
Plaintiff Claims: negligence and gross negligence and as next friend of two minor children for their loss of parental consortium and their bystander claims for mental anguish.
Adult paralyzed in a trampoline facility sues for her injuries. The release she signed before entering stopped all of her claims, including her claim for gross negligence.
However, the reasoning behind the support for the release to stop the gross negligence claim was not in the decision, so this is a tenuous decision at best.
The plaintiff and her sixteen-year-old son went to the defendant’s business. Before entering she signed a release. While on a trampoline, the plaintiff attempted to do a back flip, landed on her head and was rendered a paraplegic from the waist down.
The plaintiff sued on her behalf and on behalf of her minor. Her claim was a simple tort claim for negligence. Her children’s claims were based on the loss of parental consortium and under Texas law bystander claims for seeing the accident or seeing their mother suffer. The plaintiff’s husband also joined in the lawsuit later for his loss of consortium claims.
The defendant filed a motion for summary judgment which the trial court granted and the plaintiff appealed.
The original entity named on the release was a corporation that was no longer in existence. Several successor entities now owned and controlled the defendant. The plaintiff argued the release did not protect them because the release only spoke to the one defendant.
The next argument was whether the release met the requirements on Texas law for a release. The court pointed out bold and capital letters were used to point out important parts of the release. An assumption of the risk section was separate and distance from the release of liability section, and the release warned people to read the document carefully before signing.
Texas also has an express negligence rule, the requirements of which were also met by the way the release was written.
Further, on page one in the assumption of risk paragraphs, the person signing the Release acknowledges the “potentially hazardous activity,” and the Release lists possible injuries including “but not limited to” sprains, heart attack, and even death. Although paralysis is not specifically named as an injury, it is certainly less than death and thus would be included within the “but not limited to” language. Also, the release of liability paragraph above Quiroz’s signature expressly lists the types of claims and causes of action she is waiving, including “negligence claims, gross negligence claims, personal injury claims, and mental anguish claims.
Next the plaintiff argued that the release covered her and her sixteen-year-old minor son. As such the release should be void because it attempted to cover a minor and releases in Texas do not work for minors.
The court ignored this argument stating it was not the minor who was hurt and suing; it was the plaintiff who was an adult. The court then also added that the other plaintiffs were also covered under the release because all of their claims, loss of parental consortium and loss of consortium are derivative claims. Meaning they only succeed if the plaintiff s claim succeeds.
The final argument was the plaintiff plead negligence and gross negligence in her complaint. A release in Texas, like most other states, was argued by the plaintiff to not be valid.
The appellate court did not see that argument as clearly. First, the Texas Supreme Court had not reviewed that issue. Other appellate courts have held that there is no difference in Texas between a claim for negligence and a claim for gross negligence.
The Texas Supreme Court has not ruled on whether a pre-injury release as to gross negligence is against public policy when there is no assertion that intentional, deliberate, or reckless acts cause injury. Some appellate courts have held that negligence, and gross negligence are not separable claims and a release of liability for negligence also releases a party from liability for gross negligence.
The court looked at the release which identified negligence and gross negligence as claims that the release would stop.
Quiroz’s Release specifically stated that both negligence and gross negligence claims were waived. The assumption of risk paragraph that lists the specific types of claims/causes of actions that were included in the Release was encased in a box, had all capital lettering, and appeared above the signature line. As noted above, Quiroz received fair notice regarding the claims being waived.
Although not specifically writing in the opinion why the release stopped the gross negligence claims, the court upheld the release for all the plaintiff claims.
…Quiroz’s Release specifically stated that both negligence and gross negligence claims were waived. The assumption of risk paragraph that lists the specific types of claims/causes of actions that were included in the Release was encased in a box, had all capital lettering, and appeared above the signature line. As noted above, Quiroz received fair notice regarding the claims being waived.
The court affirmed the trial court’s dismissal of the plaintiff’s claims.
First this case is a great example of believing that once you have a release you don’t have to do anything else. If the defendant’s release would have been checked every year, someone should have noticed that the named entity to be protected no longer existed.
In this case that fact did not become a major issue, however, in other states the language might not have been broad enough to protect everyone.
Second, this case is also proof that being specific with possible risks of the activities and have an assumption of risk section pays off.
Finally, would I go out and pronounce that Texas allows a release to stop claims for gross negligence. No. Finger’s crossed until the Texas Supreme Court rules on the issue or another appellate court in Texas provides reasoning for its argument, this is thin support for that statement.
PRIOR HISTORY: [*1] On Appeal from the 298th Judicial District Court, Dallas County, Texas. Trial Court Cause No. 15-02671.
OVERVIEW: HOLDINGS: -The trampoline facility owner met its burden of establishing it was entitled to summary judgment as a matter of law because the release was enforceable when it met both the fair notice requirement for conspicuousness and the express negligence rule.
COUNSEL: For Graciela Quiroz, et al, Appellant: John T. Kirtley, Lead counsel, Ferrer, Poirot and Wansbrough, Dallas, TX.
For Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc., Appellee: Cassie Dallas, Shelby G. Hall, Wade C. Crosnoe, Lead Counsel, Thompson, Coe, Cousins & Irons, L.L.P., Dallas, TX; Michael A. Yanof, Lenahan Law, P.L.L.C., Dallas, TX; Randy Alan Nelson, Thompson Coe, Dallas, TX.
JUDGES: Before Justices Myers, Boatright, and O’Neill.1 Opinion by Justice O’Neill.
Appellant Graciela Quiroz brought a negligence suit against appellees Jumpstreet8, Inc., Jumpstreet, Inc., and Jumpstreet Construction, Inc. (collectively Jumpstreet) for injuries she sustained while jumping on a trampoline at a Jumpstreet facility. Jumpstreet moved for summary judgment based upon a pre-injury release signed by Quiroz. Quiroz responded and filed a cross-motion for partial summary judgment. The trial court granted Jumpstreet’s motion for summary judgment, denied Quiroz’s cross-motion for partial summary judgment, and dismissed all of Quiroz’s claims. In one issue, Quiroz contends the trial court erred in granting Jumpstreet’s motion for summary judgment and denying her motion for partial summary judgment. We affirm the trial court’s order.
On November 29, 2014, Quiroz and her sixteen-year-old son went to Jumpstreet. Prior to using the facility, Quiroz was given a pre-injury release form that was titled “Jumpstreet, LLC Release [*2] and Parent/Guardian Waiver of Liability and Assumption of Risk.” The Release recited the following statements under the title: “PLEASE READ THIS DOCUMENT CAREFULLY. BY SIGNING IT, YOU ARE GIVING UP LEGAL RIGHTS.” After signing the Release, Quiroz and her son jumped on a trampoline. When Quiroz attempted to do a flip, she injured her neck. Quiroz is now paralyzed from the waist down. Quiroz brought suit, individually, against Jumpstreet for negligence and gross negligence and as next friend of two minor children for their loss of parental consortium and their bystander claims for mental anguish. Robert Sullivan (Quiroz’s spouse) joined the suit for loss of consortium and as next friend of a third minor child for loss of parental consortium and a bystander claim for mental anguish.
Jumpstreet filed a “Traditional Motion for Summary Judgment” alleging summary judgment was proper because Quiroz had signed a Release. In the motion, Jumpstreet stated that because Quiroz alleged negligence and gross negligence claims against Jumpstreet arising from her utilizing a Jumpstreet facility, the Release signed by Quiroz expressly released any negligence and gross negligence claims. Jumpstreet asserted [*3] the Release was valid and enforceable because it specifically named the party to be released, it met the fair notice requirements of conspicuousness and the express negligence rule, and it met the contractual elements of mutual intent and valid consideration.
Quiroz filed a response to Jumpstreet’s motion for summary judgment and a cross-motion for partial summary judgment that alleged summary judgment for Jumpstreet was improper because there was an issue of material fact regarding the Release. Quiroz alleged she was entitled to a partial summary judgment because the Release was “void, voidable and unenforceable” because the named entity did not exist at the time of her injury, the Release was ambiguous, a parent could not waive claims of minors, and the Release could not waive gross negligence claims because it would be against public policy to do so. The trial court granted Jumpstreet’s traditional motion for summary judgment and denied Quiroz’s cross-motion for partial summary judgment. Quiroz timely filed this appeal.
In her sole issue on appeal, Quiroz contends the trial court erred by granting Jumpstreet’s motion for summary judgment and denying her cross-motion [*4] for partial summary judgment. Quiroz asserts that as a matter of law, no contract existed between her and Jumpstreet, LLC, the entity named in the Release. Quiroz argues there was no “meeting of the minds on the contract’s essential terms” between her and Jumpstreet, LLC because Jumpstreet, LLC had been dissolved in June 2011 and did not exist at the time of her injury in November 2014. Quiroz contends that because a nonexistent entity cannot form or enter into a contract, the Release is void and unenforceable as a matter of law.
Quiroz further contends the Release did not meet the “fair notice requirement” because none of the Jumpstreet defendants are named in the Release; only the nonexistent entity “Jumpstreet, LLC” is specifically named in the Release. Quiroz argues the Release also never specifically identified or released a claim for an injury due to paralysis. Further, Quiroz asserts that as a matter of law, a parent cannot waive a minor’s claims, and a Release cannot waive any claims for gross negligence because that is against public policy.
Jumpstreet responds that the trial court properly granted summary judgment in their favor because Quiroz signed a valid, enforceable Release [*5] before using its facility. The Release satisfied both the fair notice requirement and the express negligence rule as to both negligence and gross negligence claims. Jumpstreet also argues the Release meets the general requirements of a valid contract because it shows a “meeting of the minds” and valid consideration. Jumpstreet further responds that because the consortium and bystander claims are derivative claims, they are barred as a matter of law.
[HN1] We review a trial court’s summary judgment order de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A party moving for summary judgment has the burden of showing that no genuine issue of material fact existed and that it was entitled to judgment as a matter of law. City of Dallas v. Dallas Morning News, LP, 281 S.W.3d 708, 712 (Tex. App.–Dallas 2009, no pet.); see also Tex. R. Civ. P. 166a(c). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When both sides move for summary judgment, however, each party bears the burden of establishing it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000). When the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both parties and determine all the questions presented. [*6] S. Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676, 678 (Tex. 2013).
The Release signed by Quiroz was a prospective release of future claims, including claims based on Jumpstreet’s own negligence. [HN2] A release is an absolute bar to the released matter and extinguishes a claim or cause of action. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 509 (Tex. 1993). Jumpstreet had to show that the Release’s language met the fair notice requirement of conspicuousness and the express negligence rule. See id. “Conspicuous” means the terms must be presented in a manner that a reasonable person against whom it is to operate ought to have notice. Quintana v. CrossFit Dallas, L.L.C., 347 S.W.3d 445, 450 (Tex. App.–Dallas 2011, no pet,).
The express negligence rule is not an affirmative defense, but it is a rule of contract interpretation. See Fisk Elec. Co. v. Constructors & Assocs., Inc., 888 S.W.2d 813, 814 (Tex. 1994). This rule states that if a party intends to be released from its own future negligence, it must express that intent in clear, unambiguous terms within the four corners of the contract. Atl. Richfield Co. v. Petroleum Pers., Inc., 768 S.W.2d 724, 726 (Tex. 1989); Quintana, 347 S.W.3d at 450.
[HN3] Parties have the right to contract as they see fit as long as their agreement does not violate the law or public policy. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 129 & n.11 (Tex. 2004). Texas law recognizes and protects a broad freedom of contract. Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 671 (Tex. 2008). Under Texas law, a release is a contract and is subject to avoidance just like any other contract. Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990). When construing a contract, the court’s primary concern is to give effect to the written [*7] expression of the parties’ intent. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). Public policy dictates that courts are not to interfere lightly with this freedom of contract. See, e.g., Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 912 (Tex. 2007) (commercial lease expressly waiving warranties); In re Prudential, 148 S.W.3d at 129 & n.11 (contractual jury waiver); BMG Direct Mktg., Inc. v. Peake, 178 S.W.3d 763, 767 (Tex. 2005) (liquidated damages clause); Missouri, K. & T. R. Co. v. Carter, 95 Tex. 461, 68 S.W. 159, 164 (Tex. 1902) (contract waiving responsibility for fires caused by railroad engines).
The record shows the entity named “Jumpstreet, LLC” was dissolved in June, 2011. The record also contains a deposition transcript from Martin L. Brooks who testified he and Tim Crawford were cousins and the sole owners of all the Jumpstreet entities, all the Jumpstreet entities were engaged in the trampoline business, and the entity named “Jumpstreet, Inc.” was the parent company. The record shows that in her original petition, Quiroz named seventeen different Jumpstreet entities, including “Jumpstreet, Inc.,” the parent company. In her “fourth amended petition” that was in effect at the time of the summary judgment hearing, however, she named only three of the Jumpstreet entities, including the parent company. The Jumpstreet appellees in this case are all engaged in the trampoline business and described with such particularity that their identity was never in doubt. Duncan, 665 S.W.2d at 420; Frazer, 4 S.W.3d at 823-24.
Although the Release in this case contains two pages, it conspicuously contains several paragraphs with bolded headings and capitalized font. On page one, an “assumption of risk” section is separate from a “release of liability” section. The Release warns prospective patrons to “please read this document [*9] carefully” and “by signing it, you are giving up legal rights.” This warning appears directly under the title of the Release and is written in all capital letters. On page two, the Release has an “assumption of the risk” paragraph in all capital letters and surrounded by a box, calling specific attention to it. On both pages, there are several references to the risks and dangers of participating in Jumpstreet services throughout the Release. The “waiver and release” language is repeated a final time, in capital lettering, immediately above the signature line where Quiroz printed her name, date of birth, age, address, and telephone number. See Quintana, 347 S.W.3d at 452 (concluding a two-page contract titled “Health Assessment Waiver and Goals Work Sheet” that included word “release” in larger and bold print near top of second page and initialed by party was “sufficiently conspicuous to provide fair notice”).
The Release also does not run afoul of the express negligence rule. As noted above, the waiver and release language is in capital lettering immediately above the signature line where Quiroz printed her name, date of birth, age, address, and telephone number. See Quintana, 347 S.W.3d at 452. Further, on page one in the assumption of [*10] risk paragraphs, the person signing the Release acknowledges the “potentially hazardous activity,” and the Release lists possible injuries including “but not limited to” sprains, heart attack, and even death. Although paralysis is not specifically named as an injury, it is certainly less than death and thus would be included within the “but not limited to” language. Also, the release of liability paragraph above Quiroz’s signature expressly lists the types of claims and causes of action she is waiving, including “negligence claims, gross negligence claims, personal injury claims, and mental anguish claims.” Id.
Quiroz next argues that a parent cannot waive a minor child’s claims. Quiroz asserts Munoz v. II Jaz Inc., 863 S.W.2d 207 (Tex. App.–Houston [14th Dist.] 1993), is the leading Texas case. In Munoz, the parents sued an amusement park for damages after their child was injured on a ride. The trial court granted the park’s motion for summary judgment based upon a pre-injury release signed by the parents. The appellate court reversed, holding that the Family Code did not give parents the power to waive a child’s cause of action for personal injuries. Munoz is distinguishable from Quiroz’s claims in that Quiroz sustained the injury and not her children. [*11] Moreover, [HN5] the cause of action for loss of parental consortium, like the cause of action for loss of spousal consortium, is a derivative cause of action. As such, the defenses that bar all or part of the injured parent’s recovery have the same effect on the child’s recovery. Reagan v. Vaughn, 804 S.W.2d 463, 468 (Tex. 1990), on reh’g in part (Mar. 6, 1991). And although bystander claims are considered independent and not derivative, it is also true that the bystander plaintiff cannot recover unless the injured person can recover. Estate of Barrera v. Rosamond Vill. Ltd. P’ship, 983 S.W.2d 795, 799-800 (Tex. App.–Houston [14th Dist.] 1998, no pet.).
Quiroz lastly argues a pre-injury release cannot apply to gross negligence claims because that is against public policy. Generally, a contract provision “exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy. Restatement (Second) of Contracts § 195(1 (1981). Quiroz cites our case in Van Voris v. Team Chop Shop, 402 S.W.3d 915 (Tex. App.–Dallas 2013, no pet.), for this proposition. There is disagreement among the courts of appeals as to whether a party may validly release claims for gross negligence. The Texas Supreme Court has not ruled on whether a pre-injury release as to gross negligence is against public policy when there is no assertion that intentional, deliberate, or reckless acts cause injury.2 Some appellate courts have held that negligence [*12] and gross negligence are not separable claims and that therefore a release of liability for negligence also releases a party from liability for gross negligence. See Tesoro Petroleum Corp. v. Nabors Drilling U.S., 106 S.W.3d 118, 127 (Tex. App.–Houston [1st Dist.] 2002, pet. denied); Newman v. Tropical Visions, Inc., 891 S.W.2d 713, 722 (Tex. App.–San Antonio 1994, writ denied).
2 We note that Quiroz cited Zachry Construction Corp. v. Port of Houston Authority Of Harris County., 449 S.W.3d 98 (Tex. 2014), in her “First Supplemental Brief,” for the proposition that “a pre-injury release of future liability for gross negligence is void as against public policy.” In Zachry, the Texas Supreme Court had to decide, in a breach of contract case, whether a no-damages-for-delay provision shielded the owner from liability for deliberately and wrongfully interfering with the contractor’s work. In Zachry, the Texas Supreme Court held the no-damages-for-delay provision at issue was unenforceable as against public policy. Zachry, however, is distinguishable because that case concerned how a no-delay-for-damages provision could be enforced if the Port’s intentional misconduct caused the delay. Here, Quiroz has not asserted that Jumpstreet’s alleged negligence was intentional, deliberate, or reckless.
In contrast, we recently held that a plaintiff’s execution of a contract specifically releasing a defendant from liability for negligence did not release the defendant from liability for gross negligence. Van Voris, 402 S.W.3d at 926. We reasoned that the public policy requiring an express release from negligence also requires an express release from gross negligence. See id. We specifically pointed out that “our conclusion is limited to the context presented by this case.” See id. Other courts have held that pre-accident waivers of gross negligence are invalid as against public policy. See Sydlik v. REEIII, Inc., 195 S.W.3d 329, 336 (Tex. App.–Houston [14th Dist.] 2006, no pet.); Smith v. Golden Triangle Raceway, 708 S.W.2d 574, 576 (Tex. App.–Beaumont 1986, no writ).
Van Voris is distinguishable from the case here in that Quiroz’s Release specifically stated that both negligence and gross negligence claims were waived. The assumption of risk paragraph that lists the specific types of claims/causes of actions that were included in the Release was encased in a box, had all capital lettering, and appeared above the signature line. As noted above, Quiroz received fair notice regarding the [*13] claims being waived. See Quintana, 347 S.W.3d at 450.
The Release met both the fair notice requirement for conspicuousness and the express negligence rule. It was, thus, enforceable. See Quintana, 347 S.W.3d at 452. As a result, Jumpstreet met its burden of establishing it was entitled to summary judgment as a matter of law. See City of Garland, 22 S.W.3d at 356. We conclude the trial court properly granted Jumpstreet’s motion for summary judgment. See Travelers Ins. Co., 315 S.W.3d at 862.
We affirm the trial court’s order granting Jumpstreet’s motion for summary judgment and denying Quiroz’s cross-motion for partial summary judgment.
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellees Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc. recover their costs of this appeal from appellants Graciela Quiroz and Robert Sullivan.
Judgment entered this 9th day of July, 2018.


In re Marriage of SHERYL JONES DAVIS and KEITH XAVIER DAVIS.
In a marital dissolution proceeding, a court determines the division of property between the spouses by first characterizing the parties‘ property as community property or separate property. (In re Marriage of Valli (2014) 58 Cal.4th 1396, 1399.) Family Code section 760 provides that all property acquired by the spouses during the marriage is community property ―[e]xcept as otherwise provided by statute.
One such statute is Family Code section 771, subdivision (a) (section 771(a)), which provides that ―[t]he earnings and accumulations of a spouse . . . , while living separate and apart from the other spouse, are the separate property of the spouse.
In this case we consider whether a couple may be ―living separate and apart,for purposes of section 771(a), when they live together in the same home. We conclude the answer is no. The statute requires the spouses to be living in separate residences in order for their earnings and accumulations to be their separate property. Because the Court of Appeal concluded otherwise, we reverse its judgment.
―living entirely separate lives. They spoke about divorce, but stayed together for the sake of the children.
The parties maintained a joint bank account from the beginning of their marriage, which wife managed. In 2001, however, husband started his own business and at some point opened a separate bank account. In 2003, wife reactivated a separate bank account of her own to manage her business funds and pay for her personal expenses. Husband contributed $3,200 a month to the parties‘ joint account from his separate account for the payment of household expenses. But both parties were unhappy with each other‘s contributions to the joint account. In January 2006, husband became employed by Clorox, substantially increasing his earnings. Wife was frustrated when he did not increase his financial support to the household.
contribute equally to running the home and funding the children‘s expenses, while being solely responsible for their own respective personal expenses. Wife removed husband from her American Express credit account and returned several of husband‘s credit cards to him. She believed at this point that they were acting simply as roommates. In July 2006, wife began working full-time, substantially increasing her earnings. Husband left his job with Clorox in September 2006.
The parties continued to live in the marital home after June 1, 2006. Wife continued to keep her personal belongings there. She continued to receive mail and telephone calls there. She continued to cook meals at the home when she was in town, although she often traveled for her work. She did not change the address on her driver‘s license. In August 2006, the parties took a family vacation to Hawaii with their children. However, they subsequently took no out-of-state vacations with one another. They continued to celebrate special occasions, such as birthdays and holidays, together as a family as they had previously done. They both continued to use their joint bank account.
When wife filed the petition for dissolution of the marriage on December 30, 2008, she listed the date of their separation as June 1, 2006. In his initial response to wife‘s petition, husband listed the date of separation as January 2, 2009 (a few days after wife‘s filing of the petition). Wife did not move out of the marital home until July 2011. Husband subsequently filed an amended response listing the date of separation as July 1, 2011.
After trial of the issue, the court found the date of separation to be June 1, 2006. The Court of Appeal affirmed. In relevant part, it disagreed with the majority decision in In re Marriage of Norviel (2002) 102 Cal.App.4th 1152 (Norviel), which held that physically living apart is ―an indispensable threshold requirement‖ for separation under section 771(a). (Norviel, supra, at p. 1162.) We granted review to resolve the apparent conflict in interpretation of the statute.
Husband contends that spouses cannot be ―living separate and apart‖ for purposes of section 771(a) when they continue to share a residence. He urges such a bright-line rule in order to provide clear guidance to judges and a measure of predictability to attorneys and litigants. Wife contends that no particular fact, including place of residence, is determinative. Instead, wife argues that a court should consider the totality of the circumstances and decide the date of separation based on conduct by either or both of the spouses evidencing a complete and final intent to part ways with no plan of resuming the marital relationship, even if at that time they are still living in the same residence. According to wife, husband‘s proposed bright-line rule is unworkable and would lead to harsh results. Husband claims the same thing about wife‘s proposed rule.
―the phrase ‗living separate and apart‘ is a term of art.‖ (1 Kirkland et al., Cal. Family Law: Practice and Procedure (2d ed. 2014) Characterization — Division in General, § 20.06[a], p. 20-26.) As such, it has been defined in Black‘s Law Dictionary as spouses ―residing in different places and having no intention of resuming marital relations‖ (Black‘s Law Dict. (7th ed. 1999) p. 945, col. 2, italics added) and more recently as spouses ―living away from each other, along with at least one spouse‘s intent to dissolve the marriage.‖ (Black‘s Law Dict. (10th ed.
―apart‖ from someone else do not include persons living together in the same home. Ordinary usage of the language itself contemplates the parties‘ occupation of separate residences. Therefore, the statute on its face appears to have a commonly understood, plain meaning.
court‘s attention on the spouses‘ independence or autonomy from each other in their daily living. Under this understanding of the statutory phrase, physical separation would, as wife contends, be simply one of many factors to consider in determining the date of a couple‘s separation.
husband‖ strongly suggests that the 1870 Act was directed at a situation where the spouses had physically separated and the wife in fact had ―her own‖ residence. It is some indication that the 1870 Legislature had in mind what we have described as the common meaning of the language when it first adopted it.
When read as a whole and in this context, it seems evident that the 1870 Act was intended to afford married women some additional protection from the rigors of the law generally denying them control over their earnings and separate property. Under the authority of the 1870 Act, a wife whose husband was not physically living with her could undertake to support herself in her ―own‖ residence. Unlike other married women, she could retain her earnings and accumulations as her separate property to maintain her separate residence. She was given the right to control and dispose of her separate property. She could sue and be sued without the joinder of her husband. Nothing in the 1870 Act indicates a different intent — to characterize a wife‘s earnings and accumulations as her separate property while she was still physically living with her husband in the marital home so long as she and her husband were sufficiently leading ―separate lives.‖ To the contrary, the 1870 Act should be understood as a limited exception to the general rule of that time that the husband had full management and control over the marital and separate assets for the duration of the marriage. It appears the Legislature was concerned only with the special and limited circumstance of a wife who was living physically separate from her husband. Such a wife was likely to be incurring separate expenses associated with her separate residence and could be anticipated to need the authority to separately maintain, control and manage such property. In such a situation, the 1870 Legislature determined an exception to the normal community property characterization of earnings and accumulations acquired during marriage and husband‘s control was appropriate.
nothing suggests that the 1872 Legislature contemplated that anything other than separate residences would qualify as ―living separate,‖ i.e., that it intended the language to be construed differently from its common and ordinary meaning. In fact, the Legislature enacted at the same time section 5 of the Civil Code, which states that ―[t]he provisions of this Code, so far as they are substantially the same as existing statutes or the common law, must be construed as continuations thereof, and not as new enactments.‖ Because former section 169 was substantially the same as section 2 of the 1870 Act, Civil Code section 5 directs that it be interpreted as continuing in effect the former law.
And indeed, with respect to the language now found in section 771(a), from the earliest cases on, the issue presented regarding the interpretation of the statute was not whether separate places of residence were a prerequisite for application of the law, but rather whether separate residences sufficed. That question was answered in the negative.
marital relations with his wife, while his wife and children continued to live in the marital home, where the wife kept boarders and did other work to support herself and the children. (Loring v. Stuart (1889) 79 Cal. 200, 201-202; see Tagus Ranch Co. v. First Nat. Bk. (1935) 7 Cal.App.2d 457 [money borrowed by wife who had been deserted by her husband constituted her separate property under former section 169].) These facts illustrate the apparent purpose of the statute: to provide for an estranged wife, whose husband was not physically living with her, a means of maintaining herself in her separate place of residence by allowing her earnings and accumulations to be her separate property.
Without questioning whether separate residences was a necessary predicate, courts struggled to articulate a uniform standard for determining the date of separation in circumstances where the parties had moved into separate homes.
Subsequent legislative developments suggest no intent to change the meaning of the phrase ―living separate and apart.‖ In 1969, the Legislature repealed the family law portions of the Civil Code and replaced them with the Family Law Act. (Stats. 1969, ch. 1608, §§ 3, 6, 8, pp. 3313-3314.) Relevant to our discussion, former section 169 was repealed and Civil Code section 5118 (former section 5118) was adopted. (Stats. 1969, ch. 1608, § 8, p. 3340.) Like its predecessor, former section 5118 provided that ―[t]he earnings and accumulations of the wife . . . , while she is living separate from her husband, are the separate property of the wife.‖ (Stats. 1969, ch. 1608, § 8, p. 3340.) As before, no specialized definition of the language was provided, and by enacting language identical to former section 169, the 1969 Legislature once again expressed its intent to continue in effect the former law. (Civ. Code, § 5.) Therefore, as it did originally, the statute continued to address the situation in which a wife was living estranged in a separate residence from her husband.
mean the minor occupies a separate residence. (Fam. Code, § 6922, subd. (a)(2); see Family Code, 22 Cal. Law Revision Com. Rep. (1992) foll. § 6922, p. 545 [―Section 6922 restates former Civil Code § 34.6 without substantive change.‖].) This statute further supports our view that the Legislature likely intends the common meaning of the language when it uses this statutory phrase.
p. 927.) The Manfer court stated that ―[t]he date-of-separation test does not ask what the public thinks, but whether at least one of the parties intended to end the marriage and whether there was objective conduct ‗bespeak[ing] the finality of the marital relationship.‘ ‖ (Id., at p. 928.) Once again, as in all the other cases discussed previously, the facts in Manfer involved the separation of residences.
They are consistent with a view that both separate residences and demonstrated intent are necessary.
5	The Norviel majority noted In re Marriage of Johnson (1982) 134 Cal.App.3d 148, was the only case husband proffered as authority for his position that parties may live together and still be considered separated. (Norviel, supra, 102 Cal.App.4th at p. 1162.) In Johnson, supra, at page 155, husband contested the trial court‘s finding of the date of separation, but the reviewing court concluded, in a single paragraph with little discussion, that the trial court‘s determination was based upon substantial evidence. The Norviel majority was not convinced that Johnson was contrary to the conclusion that it reached, given Johnson‘s sparse recitation of the relevant facts. (Norviel, supra, at p. 1162.) We agree. But to the extent that it can be argued that the Johnson court determined that living separate lives was sufficient for purposes of former section 5118 (Johnson, supra, at p. 155), it is contrary to the evidence of legislative intent that we have discussed.
There appears to have been no reaction from the bench or bar subsequent to the Norviel decision contending that the Norviel majority had introduced a sudden new rule that was legislatively unintended and unworkable. No movement to promote the position of the Norviel dissent seems to have materialized. And, although we recognize that legislative inaction after a judicial decision does not necessarily imply legislative approval (County of Los Angeles v. Workers’ Comp. Appeals Bd. (1981) 30 Cal.3d 391, 404), it is also interesting to observe that the Legislature has had more than a decade to amend section 771(a) in response to the Norviel majority‘s recognition of a threshold requirement of physically separate places of residence and has failed to do so.
Wife contends that a bright-line rule, such as we articulate, will be overly simplistic, will lead to unjust, harsh results, and is, essentially, against current public policy considerations. She suggests that ―[a] typical spouse in California, for example, may face further financial difficulties simply by being required to move out of the marital residence as a prerequisite to establishing the date of separation rather than intentionally and meaningfully living as roommates at the same residence, while taking the necessary steps to untangle any outstanding financial, legal and social ties incident to that spouse‘s decision to terminate the marriage.‖ She points out that there may be spouses who need to reside in the same residence as ―roommates‖ because of foreclosure, job loss, or other economic factors. She suggests that others may wish to share the same residence in order to coparent their children. Finally, she speculates concerning the difficulty a spouse may encounter in obtaining a move-away order.
7	Under the facts presented by this case, we have no occasion to consider, and expressly reserve the question, whether there could be circumstances that would support a finding that the spouses were ―living separate and apart,‖ i.e., that they had established separate residences with the requisite objectively evidenced intent, even though they continued to literally share one roof.
ordinary sense as requiring separate places of residence before the earnings and accumulations of a wife during marriage could be characterized as the wife‘s separate property. We understand the original legislative purpose of the statute to be the protection of and provision for a wife who was estranged and living physically separate from her husband. Thus, the statutory phrase ―living separate and apart‖ required that the spouses be living in separate residences. We find no evidence of any subsequent change in the legislative intent to apply the commonly understood meaning of that language or change of legislative purpose in protecting a vulnerable spouse, which alter the meaning of this statutory phrase. Admittedly, the statute, as so construed, may work hardship in some specific situations, but we cannot say it is absurd. (People v. Leiva (2013) 56 Cal.4th 498, 506 [a literal construction may be rejected where it would result in absurd consequences the Legislature could not have intended].) Very much to the contrary; a bright-line rule, as husband points out, promotes fairness by providing a measure of predictability to the parties and their attorneys, as well as clear guidance to judges. It reduces the potential for manipulation of a more elastic standard by the higher earner in situations of significant disparity of spousal income. It provides separate property classification of earnings and accumulations where the need is greatest because each spouse is maintaining his or her own separate place of residence. It retains the presumption of community property for earnings and accumulations acquired during marriage during a period of time likely to be prior to the institution of court proceedings and any court order of support, thereby protecting the lower earning spouse.
We conclude that living in separate residences ―is an indispensable threshold requirement‖ (Norviel, supra, 102 Cal.App.4th at p. 1162) for a finding that spouses are ―living separate and apart‖ for purposes of section 771(a). This interpretation of the statutory language aligns with the common understanding of the words, the statutory history of the provision, and legitimate public policy concerns. Because the Court of Appeal rejected such a requirement as a matter of statutory construction, it erred as a matter of law.
WERDEGAR, J. CHIN, J. CORRIGAN, J. LIU, J. CUÉLLAR, J. KRUGER, J.
I agree with today‘s opinion that the phrase ―living separate and apart in Family Code section 771, subdivision (a) (hereafter section 771(a)) ―refers to a situation in which spouses are living in separate residences and at least one of them has the subjective intent to end the marital relationship, which intent is objectively evidenced by words or conduct reflecting that there is a complete and final break in the marriage relationship.‖ (Maj. opn., ante, at pp. 23–24.) I also agree that it remains open ―whether there could be circumstances that would support a finding that the spouses were ‗living separate and apart,‘ i.e., that they had established separate residences with the requisite objectively evidenced intent, even though they continued to literally share one roof.‖ (Id. at p. 24, fn. 7.) I write separately to note that in addressing that question, courts should understand the purpose of section 771(a) in light of relevant changes in historical context that have occurred since 1870 when the Legislature enacted the original version of the statute.
The 1870 Act may be understood as a legislative response to cases like Lawrence v. Spear (1861) 17 Cal. 421. There a wife deserted by her husband engaged in a furniture business and sold furniture to the defendant. The husband sued the defendant to void the sale on the ground that he never consented to it.
The court upheld the sale based on the legal fiction that the husband, having abandoned the wife, impliedly consented to her disposition of property for her own support. (Id. at pp. 423–424.) This fiction was necessary because the wife had no control over community property and no way to accumulate or control her own separate property, even though she was living separate and apart from her husband. Moreover, divorce did not appear to be a widely accessible option. (See Stevenson & Wolfers, Marriage and Divorce: Changes and their Driving Forces (Spring 2007) 21 J. Econ. Persp. 27, 29, fig. 1 (Stevenson & Wolfers) [showing very low rate of divorce in the United States between 1860 and 1900].) The 1870 Act provided a narrow exception to the male-dominated property regime in order to protect a wife in such circumstances.
Thus, by 1971, an estranged wife living separate and apart from her husband had no need for a special statutory dispensation to earn and control separate property in order to provide for her own sustenance. She already controlled the portion of the community comprised of her own earnings, and she was soon to have equal control of all community property. Thus, the gender- neutral version of the statute enacted in 1971 no longer served the same protective purpose of the gender-specific 1870 Act. The modern statute is best understood to have a different purpose: Instead of addressing a nonexistent need to free one spouse from the other‘s exclusive control of community property, the statute — consistent with contemporary norms of gender equality — evenhandedly recognizes the separateness of each spouse‘s earnings and accumulations in situations where the spouses have effectively though not formally ended their marriage. In short, the statute recognizes a separation before divorce that effectively ends the community.
p. 25.) But whereas a narrow construction of the phrase now ―protect[s] the lower earning spouse by ―reduc[ing] the potential for manipulation of a more elastic standard by the higher earner (ibid.), a narrow construction served no similar protective purpose in 1870. To the contrary, the Legislature in 1870 understood ― living separate and apart narrowly to mean separate addresses because it sought to create ―a limited exception to the general rule of that time that the husband had full management and control over the marital and separate assets for the duration of the marriage. (Id. at p. 11, italics added.) A broader understanding of ―living separate and apart — one that enabled an estranged wife to earn and control separate property without living at a separate address from her husband — would have been more protective of the vulnerable spouse in 1870. Yet it also would have meant greater property rights for married women at the expense of the male- controlled property regime, and there is no indication that the Legislature in 1870 had any interest in fundamentally changing that regime. The 1870 statute was protective because it created an exception to the male-dominated property regime, not because the exception it created was a narrow one.
administrability (id. at p. 25) suggest that whether spouses are ―living separate and apart‖ turns not solely on the subjective intent of at least one spouse, but also on an objective manifestation of that intent by some form of physical separation.
p. 24) suggest that the physical separation need not assume the precise form that the Legislature in 1870 envisioned, namely, separate addresses.
purpose of section 771(a), the question is whether the spouses, in addition to their intent to separate, have demonstrated ―unambiguous, objectively ascertainable conduct amounting to a physical separation under the same roof.‖ (In re Marriage of Norviel (2002) 102 Cal.App.4th 1152, 1164.) In order to qualify as ―living separate and apart,‖ the spouses must have a living arrangement that clearly and objectively signals a complete and final termination of the marital relationship.
Neither the Legislature nor this court has foreclosed the possibility that such a living arrangement may occur within a single dwelling.


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Marty and Pieklo argue that this onslaught of bad legislation has put women — especially poor, minority, and rural women — in a separate and secondary class of health care consumers who have little choice or control over their reproductive health. The authors posit that the goal of the many restrictions is to render abortion “legal in name only” — still legal, but largely unavailable.
Marty and Pieklo point to the 1992 case Planned Parenthood v. Casey as a turning point that pitted the rights of women against concerns over eggs, embryos, and fetuses. A case that challenged abortion regulations in Pennsylvania, Planned Parenthood v. Casey resulted in a decision that didn’t overturn the liberties guaranteed by Roe v. Wade but put them at odds with a state’s interest in safeguarding potential life.
While the Casey decision set the legal stage, a more recent court decision gave anti-abortion groups the financial power to roll back reproductive rights. The Supreme Court decision in the 2010 case Citizens United v. Federal Election Commission radically undermined campaign finance laws and thereby helped fuel the many recent anti-abortion laws. That particular outcome of the Citizens United decision should put a smile on the face of attorney James Bopp, Jr.; Bopp helped the lobbying organization Citizens United realize their legal victory, and he has also had numerous anti-abortion groups among his clients, including Focus on the Family and National Right to Life.
With that financial power behind them, anti-abortion activists went on the offensive with renewed fervor — and a new strategy. The focus, according to Michael New of the conservative Witherspoon Institute, would no longer be on “demand side” legislation — that is, imposing legal or financial barriers to abortion. The new focus would be on “supply side” legislation — that is, making it increasingly difficult, both legally and financially, for abortion providers to continue operating. Each new regulation, from ultrasound requirements to bans on abortions by telemedicine, can make providers rethink their commitment to offering abortions — and deter potential providers from ever offering them at all. As Marty and Pieklo report, a handful of restrictive bills that were passed in Ohio drove many resident physicians to leave the state.
In her foreword, Feldt repeats a call to action from her book The War on Choice: “‘We must not just fight back,’ I warned; ‘We must fight forward.’” In the book’s final chapter, Marty and Pieklo offer several suggestions for fighting both back and forward, among them the formation of an activist base to support candidates who will defend and advance reproductive rights. To increase the number of candidates who fit that description, they recommend growing the work of organizations like She Should Run and Off the Sidelines, both of which encourage better representation of women in public life and leadership.
The authors also point to two bills introduced in California last year that could serve as models for not only defending reproductive health care but expanding access to it. State Senator Christine Kehoe introduced a bill that would increase access to abortion for rural Californians by allowing nurses, midwives, and physician’s assistants to perform surgical abortions during the first trimester of pregnancy. Assemblywoman Holly Mitchell introduced a bill that would allow registered nurses to administer birth control.
Marty and Pieklo point to the “powerful activist backlash” as the silver lining that came out of the last two years of attack. The defeat of Arizona’s 20-week abortion ban is a fresh reminder of what advocates and activists can accomplish. A number of similar bans have been passed in other states in recent years, making Arizona’s victory an important beginning.
This entry was posted in Book & Film Reviews and tagged 2010 elections, abortion, Arizona, Barack Obama, birth control, California, campaign finance, Christine Kehoe, Citizens United, Citizens United v. Federal Election Commission, contraception, contraceptives, Crow After Roe, Democrat, egg, embryo, family planning, Federal Election Commission, fetus, Focus on the Family, Gloria Feldt, Guttmacher Institute, Holly Mitchell, Idaho, Ig Publishing, James Bopp, Jessica Mason Pieklo, Lynn Paltrow, Michael New, midterm elections, Midwest, midwife, Mississippi, National Advocates for Pregnant Women, National Right to Life, nurse, Off the Sidelines, Ohio, Pennsylvania, physician's assistant, Planned Parenthood, Planned Parenthood Federation of America, Planned Parenthood v. Casey, privacy, reproductive health, reproductive rights, Republican, RH Reality Check, RHRealityCheck.org, Robin Marty, She Should Run, telemedicine, Texas, The War on Choice, ultrasound, War on Women, Washington D.C., Wayne Christian, Witherspoon Institute by Matt. Bookmark the permalink.

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"1. The � implied � acceptance of an offer to conclude a sales contact which is made merely by sending the goods requires that the party making the offer procures the delivery obviously in its own name.
"2. On the requirements of a cessio legis of claims acquired by an agent against a third party to the principal pursuant to Swiss law." Internationales Handelsrecht (1/2004) 28-29.
Plaintiff-Appellant's appeal (Berufung) is unjustified.
Plaintiff-Appellant has to come up with the amount of CHF (Swiss francs) 6,500.00 as costs of its appeal.
The parties and the Court of First Instance (Court for Commercial Matters (Handelsgericht) of the Canton of Zurich) will be notified about this ruling in writing.
"2. We order 150,000 bottles (0.75 liters) for the amount of CHF 2.49 per unit including all taxes except Value Added Tax, to be freely delivered to our Swiss distribution centers in Frauenfeld (Canton Thurgau) and Schmitten (Canton Fribourg). Our order comprises 50,000 bottles of the specified item, which have already been delivered in sets of three bottles each on 24 September 1997 and which we hold still on our stock.
"6.4. The costs for dispatching, repacking of the latter 50,000 bottles in sets of six bottles, and the new price tagging of these items will be set off against the purchase price for new deliveries.
"10. If you do not agree to these conditions, we ask for express notification by 6 February 1998. Otherwise we assume your consent."
[Seller] forwarded this order to its supplier D. [Plaintiff-Appellant] and asked for delivery directly to [Buyer], who according to [Seller] should pay D.[Plaintiff-Appellant] directly for the delivered goods.
Accordingly, Plaintiff-Appellant delivered 150,000 bottles of the specified Montepulciano to [Buyer]'s place of business and sent bills on 13, 14 and 16 February 1998 for a total amount of CHF 373,500.00. After [Buyer] came up for taxes due of CHF 88,928.00, Plaintiff-Appellant on 27 April 1998 submitted a reduced bill of CHF 284,572.00. As regards this amount, [Buyer] in a letter to Plaintiff-Appellant dated 17 June 1998 declared a set-off against the sum of CHF 284,886.59 due to the agreed price reduction as well as due to the costs for dispatching of 69,703 three-bottle-sets and their repacking. With respect to the remainder of CHF 315.00, [Buyer] suggested to send back its 55,000 bottles of Premier Brut (CHF 3.40 each) and in turn order another 150,000 bottles of Trebiano wine for CHF 2.80 per unit.
2. On 4 September 2001, Plaintiff-Appellant brought a claim against [Buyer] for the amount of CHF 284,886.59 plus 5% interest due since 2 June 1998 before the Court for Commercial Matters (Handelsgericht) of the Canton of Zurich. Plaintiff-Appellant argued that it impliedly entered into a sales contract for the delivery of 150,000 bottles of Montepulciano with [Buyer] by delivering the agreed goods. Hence [Buyer] is bound to pay according to the presupposed contract. Through its letter of 17 June 1998, [Buyer] had implicitly admitted the existence of this contract.
In its response, [Buyer] argued that it entered into a contract of the named kind with [Seller] and not with Plaintiff-Appellant. Thus Plaintiff-Appellant's claim was unjustified. In eventu the Commercial Court would nevertheless find [Buyer] to have entered into the presupposed contract with Plaintiff-Appellant, [Buyer] argues, that then the claim must be dismissed due to its declared set-off. [Seller] further submitted that with respect to this set-off, Plaintiff-Appellant had declared that it would waive its rights as towards [Buyer]. Plaintiff-Appellant, on the other hand, denied having given any such waiver declaration.
In its judgment of 25 February 2003, the Court for Commercial Matters held Plaintiff-Appellant's claim to be unjustified. The Court found it not sustained that Plaintiff-Appellant had entered into a contract of the presupposed kind with [Buyer].
3. In its appeal (Berufung) Plaintiff-Appellant keeps to its claim and seeks reversal of the Court of First Instance's ruling. In eventu, it seeks to have the case to be remanded to the Court of First Instance for retrial.
[Buyer] argues for the dismissal of the appeal.
2. Concerning a presumed acknowledgement of the debt up to the claimed amount given by [Buyer] the Court of First Instance held that [Buyer]'s letter of 17 June 1998 did not expressly or implicitly entail such a statement. As Plaintiff-Appellant declared in the appellate proceedings that it itself never presupposed that such a debt acknowledgment had been given by [Buyer], there is no need for further investigation into this matter.
3. a) The Court of First Instance further contended that a contract for the delivery of the specified Italian wine had been concluded between [Buyer] and [Seller]: [Seller] accepted [Buyer]'s order as submitted by X. on 6 February 1998. As far as [Seller]'s acceptance implied modifications to the original offer, it had to be regarded as a counter-offer, on whose acceptance [Seller] was entitled to rely on due to the long established business relation between the parties.
3. b) In its appeal, Plaintiff-Appellant claims that the Court of First Instance misinterpreted the applicable Swiss law by holding [Buyer]'s order to be an acceptance of [Seller]'s offer, rather than a counter-offer which needed to be accepted by [Seller]. Yet, as [Seller] did not react on the offer, merely forwarding it to one of its suppliers instead, Plaintiff-Appellant argues, that it could not be considered as accepted. Under the applicable Swiss law, an offer had to be accepted expressly; remaining silent to an offer cannot be regarded as its acceptance. The exception to this principle mentioned in Art. 6 of the Swiss Law of Obligations (Obligationenrecht; OR) according to Plaintiff-Appellant would not apply to the case at issue. Equally provision No. 10 of [Buyer]'s order is not applicable as it would give rise to abuse, allowing a party to rely on the acceptance of its offer, merely by adding a provision of that kind to it.
3. c) According to Art. 6 of the Swiss Law of Obligations (Obligationenrecht; OR) an offer is accepted, if - due to the specific character of the agreement or the particular circumstances of the case - the offeror can rightfully rely on the acceptance and the other part has not explicitly refused to accept within reasonable time. Between two parties active in the field of commerce with one another for many years, it may be expected that a party will notify the other if receiving a letter of confirmation that implied a modification to a given offer. If that party fails to do so, it is bound to the agreement as stated in the modified confirmation. This can be drawn from the principle of good faith (ruling of the Federal Supreme Court (Bundesgericht) 4C.16/2000 of 24 January 2001; ruling of the Federal Supreme Court (Bundesgericht) BGE 1223 III 35 E. 2c/aa page 42).
3. d) The question of whether X. had submitted an offer per procurationem of [Seller] is irrelevant to the case. Even if X. was not authorized by [Seller] as concerns this offer, the wording of the [Buyer]'s response "[...] referring to the offer as submitted by X., we order the following items [...]" unambiguously indicates that it was meant as an acceptance to a presumed offer given by [Seller], which would not need further acceptance by the other party. This interpretation of [Buyer]'s order as an acceptance of [Seller]'s offer is supported by provision No. 10 of this document, according to which the order might be considered accepted if not expressly refused by 6 February 1998. Considering that the parties had already entered into business relations about the delivery of wine, this provision - following the principle of good faith - held [Seller] bound to expressly refuse [Buyer]'s order within the given deadline. As [Seller] failed to do so, [Buyer] could rightfully rely on the other party's consent to its order. Hence the Court of First Instance correctly concluded that [Buyer] and [Seller] entered into a valid sales contract.
4. a) The Court of First Instance further contemplated the question whether [Buyer] and Plaintiff-Appellant also entered into a binding agreement about the delivery of wine. It found that this had to be decided under the applicable CISG. [Buyer] accepted that the wine, it had ordered from [Seller] was delivered by Plaintiff-Appellant, and it did not complain about receiving bills for this delivery from [Plaintiff-Appellant] instead of [Seller] himself. Yet, the Court of First Instance found that this was hardly enough to assume that [Buyer] impliedly concluded a contract with Plaintiff-Appellant for the delivery of wine at issue. Such a presumption would fail to take account of the clear wording of [Buyer]'s order, which is clearly addressed to [Seller] and not to Plaintiff-Appellant. Plaintiff-Appellant itself does not argue that [Seller] functioned as a mere mediator within the transaction. In the international commerce of commodities, it is very common to enter into business relations with home companies and receive the delivery directly from one's contractor's international supplier. However, this does not allow the conclusion that a buyer did not contract with the seller as clearly denoted in the contract, but rather with the supplier of the seller.
4. b) In its appeal (Berufung), Plaintiff-Appellant claims that the Court of First Instance misinterpreted the applicable CISG: Even in the event that the Court would assume a contract being concluded between [Buyer] and [Seller] rather than between [Buyer] and himself, [Seller] had assigned its contractual rights and obligations to him, who impliedly accepted this deference by executing the delivery. Moreover, according to Plaintiff-Appellant, [Buyer], too, had implicitly consented to the claimed assignment by accepting the delivery by Plaintiff-Appellant as well as by accepting Plaintiff-Appellant's bills - as it had been a common practice of [Seller] and its suppliers.
4. c) The appeal (Berufung) is admissible as far as it concerned a claimed misinterpretation of Swiss national law including international conventions such as the CISG, which had been validly incorporated into Swiss law (Art. 43(1) of the Swiss Law of Obligations (Obligationenrecht; OR). Under Art. 1(1)(a) CISG the Convention applies when it has been brought up within the proceedings that the parties which have their places of business in different Member States of the Convention might have entered into a contract for the sale of goods. As the Italian Plaintiff-Appellant claims to have entered into a business relation with the [Buyer], seated in Zurich, Switzerland, the Convention would be applicable.
Art. 11 CISG provides that a contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. A proposal for concluding a contract addressed to one or more specific persons constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance (Art. 14(1), sentence one, CISG).
A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price (Art. 14(1), sentence two, CISG). In case the statements made by and other conduct of a party cannot be interpreted according to the party's actual intent according to Art. 8(1) CISG, Art 8(2) CISG provides that these statements are to be interpreted according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances. In determining the intent of a party or the understanding of a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties (Art. 8(3) CISG).
4. d) Plaintiff-Appellant argues that in delivering the wine to [Buyer] it had impliedly offered to obtain [Seller]'s contractual rights and obligations as toward [Buyer]. This presumption cannot be upheld. Plaintiff-Appellant's mere delivery of the goods that [Buyer] had ordered from [Seller] cannot be interpreted as an offer to enter into a contract. To the contrary [Buyer] could rightfully assume that - as it had happened several times before - Plaintiff-Appellant acted as a mere carrier on [Seller]'s behalf, facilitating the execution of [Seller]'s contractual obligations toward him. Consequently, [Buyer]'s acceptance of the delivery does not amount to an acceptance as concerns the claimed deference of contractual rights. The same applies as regards the bills for this transaction, which Plaintiff-Appellant had sent directly to [Buyer]: The fact that [Buyer] did not expressly complain about the bills does by no means indicate a contractual relation between Plaintiff-Appellant and [Buyer]. In denying such an agreement, the Court of First Instance therefore did not misinterpret Swiss national law.
5. In eventu, Plaintiff-Appellant cites the cessio legis in Art. 401 of the Swiss Law of Obligations (Obligationenrecht; OR) to justify the claimed deference of contractual rights.
Under Art. 401 of the Swiss Law of Obligations (Obligationenrecht; OR) a principal may affect segregation of contractual rights and obligations acquired by its agent in its own name but for the account of the principal by fulfilling its own contractual duties as towards the agent. As the ruling in First Instance does not give rise to the assumption that Plaintiff-Appellant had been [Seller]'s agent in the sense required by Art. 401 of the Swiss Law of Obligations (Obligationenrecht; OR) as concerning the delivery at issue, a cessio legis under Art. 401 of the Swiss Law of Obligations (Obligationenrecht; OR) cannot be assumed for this case.
6. Finally, Plaintiff-Appellant argues that [Buyer]'s submission that it entered into a sales contract of the named kind with [Seller], and not with Plaintiff-Appellant, must be considered an abusive exercise of its rights: [Buyer] had admitted that it never received a bill for the delivered goods by [Seller] himself. Hence, if the Court holds Plaintiff-Appellant's appeal to be unjustified, [Buyer] will not have to pay for the received wine at all, which, according to Plaintiff-Appellant, will hardly be in accord with the principle of good faith.
However, the fact that Plaintiff-Appellant forfeited its rights for payment of the delivered wine towards [Seller] cannot be to the detriment of [Buyer], but rather falls within Plaintiff-Appellant's own responsibility to take fair account of its own interests.
7. Therefore. Plaintiff-Appellant's appeal is unjustified.
* All translations should be verified by cross-checking against the original text. For the purposes of this translation the Defendant Appellee, seated in Switzerland, is referred to as [Buyer].

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29 CFR 21.109 - IRB review of research. § 21.109 - IRB review of research.
§ 21.109 - IRB review of research.
(a) An IRB shall review and have authority to approve, require modifications in (to secure approval), or disapprove all research activities covered by this policy, including exempt research activities under § 21.104 for which limited IRB review is a condition of exemption (under § 21.104(d)(2)(iii), (d)(3)(i)(C), and (d)(7), and (8)).
(b) An IRB shall require that information given to subjects (or legally authorized representatives, when appropriate) as part of informed consent is in accordance with § 21.116. The IRB may require that information, in addition to that specifically mentioned in § 21.116, be given to the subjects when in the IRB's judgment the information would meaningfully add to the protection of the rights and welfare of subjects.
(c) An IRB shall require documentation of informed consent or may waive documentation in accordance with § 21.117.
(e) An IRB shall conduct continuing review of research requiring review by the convened IRB at intervals appropriate to the degree of risk, not less than once per year, except as described in § 21.109(f).


This Sentencing Memorandum supplements findings made on the record at defendant's sentencing hearing on July 2, 2018. For the reasons set forth below, the court finds the defendant's objections to the presentence investigation report, Filing No. 695, should be sustained in part and overruled in part, and the defendant's motions for a departure or a variance from the Guidelines, Filing No. 683 and Filing No. 687, should be denied.
The defendant was charged, along with others, in a four count Second Superseding Indictment (“SSI”). He was charged in Count 1 with involvement in racketeering in violation of 18 U.S.C. § 1962(d) (“RICO”). He was charged with five overt acts in furtherance of the racketeering enterprise in Count 1: using a firearm to shoot at victim #1 on or about September 25, 2008 (¶ 14); selling and distributing crack cocaine in Omaha from August 2011 to May 2013 (¶ 15); possessing with intent to distribute cocaine on or about November 25, 2011 (¶ 16); and arguing with victim #2 and shooting at a residence occupied by victim #2 on or about September 6, 2012 (¶ ¶ 20-21). In Count 2, the defendant was charged with attempted murder of victim #2 in aid of racketeering, in violation of Nebraska state statue §§ 28-201, 28-302, and 28-303, and in violation of 18 U.S.C. § 1959(a)(5) and section 2. In Count 3, Haynie was charged with attempted assault with a firearm, in aid of racketeering, in violation of Nebraska state statue §§ 28-201 and 28-309, in violation of 18 U.S.C. § 1959(a)(6) and section 2 on or about September 6, 2012. In Count 4, he was charged with discharging a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and 924(c)(1)(A)(iii), on or about September 6, 2012.
The action was tried to a jury and the jury found Haynie guilty of racketeering (Count 1) but acquitted him of the remaining counts. Filing No. 633, Verdict. The court directed the United States Office of Probation (hereinafter, “the Probation Office”) to prepare a Presentence Investigation Report (hereinafter, “PSR”) that calculated the defendant's sentence under the United States Sentencing Guidelines (“the Guidelines”). Filing No. 635, Order on Sentencing Schedule.
In the PSR, the Probation Office identified U.S.S.G. § 2E1.1 as the guideline applicable to a racketeering offense under 18 U.S.C. § 1962. Filing No. 704, PSR (Sealed). That guideline states that the base offense level for a racketeering offense is 19 or “the offense level applicable to the underlying racketeering activity.” U.S.S.G. § 2E1.1(a)(1) and (2). “Where there is more than one underlying offense, treat each underlying offense as if contained in a separate count of conviction for the purposes of subsection (a)(2).” U.S.S.G. § 2E1.1 cmt. n. 1. To determine whether subsection (a)(1) or (a)(2) results in the greater offense level, Chapter Three adjustments are applied, including adjustments for multiple counts, to both (a)(1) and (a)(2). Id.
The Probation Office found four overt acts for purposes of grouping conduct connected to the underlying racketeering activity. Filing No. 704, PSR at 14. Group #1 included the conduct on September 25, 2008, involving the defendant shooting at victim #1 (Richard Johnson) who was believed to be an informant. Id. at 12. Group #2 included drug trafficking for which the defendant was sentenced in state court (Douglas County District Court case # CR13-1896), but because the conviction occurred after the last overt act, the conduct was treated as part of the instant offense, and not as a prior sentence under U.S.S.G. § 4A1.2(a)(1). Id. Group #3 included a drug trafficking offense for which the defendant was convicted in state court (Douglas County District Court case # CR11-2877), but because it resulted from a conviction prior to the last overt act of the instant offense, it was treated as a prior sentence under §4A1.2(a)(1) and not as part of the instant offense. Group #4 included the conduct on September 6, 2012, involving the defendant shooting at victim #2 (Michael Liggins) who was accused of talking to law enforcement. The conduct in Group #1 and Group # 4 was considered attempted murder and each group was assigned a base offense level of 33. The Group #2 conduct was considered drug distribution and assigned a base offense level of 19. Id. at 12-13. The group #3 drug distribution conduct was not assigned a base offense level because the defendant had been previously sentenced for the conduct. Id. at 13. The Probation Office conducted a multiple count adjustment under U.S.S.G. 3D1.4, which reslted in a 2-unit adjustment for a total offense level of 35. Id. at 14.
The probation office next determined the defendant's criminal history category was V, based on the assessment of 9 criminal history points for convictions for drug possession, misdemeanor assault, no operator's license, driving under suspension, reckless driving, and obstruction of justice, and 2 criminal history points for committing the offense while under a criminal justice sentence. Id. at 14-20. At base offense level 35 and criminal history category V, Haynie's Guidelines sentencing range would have been 262 to 327 months, but since that range exceeds the statutory maximum for the offense of conviction, the statutory maximum of 240 months is the Guidelines sentence. Id. at 24.
The defendant objected to the PSR, Filing No. 695, and moved for a downward departure/variance, Filing No. 683 and Filing No. 687. He argued for a downward departure for overstatement of criminal history category, contending that many criminal history points were assessed for numerous offenses that were not serious. He also objected to the assessment of 2 criminal history points for committing the crime while under a sentence for another crime, arguing that his state drug-court sentence conviction does not qualify as a criminal justice sentence. He argued that he properly belonged in criminal history category IV. He also asserted a blanket objection to the ultimate calculation of his guideline range, arguing that his total offense level should be 19, which, at criminal history category IV, would result in a guideline range of 46-57 months.
Haynie's argument is generally based on the contention that conduct for which he was acquitted should not be considered in determining his Guidelines sentence. Although he acknowledges that uncharged or acquitted conduct could be considered at sentencing, he argues that the government should not now be able to use testimony and evidence that was problematic at trial to levy a more severe sentence when the government was unable to prove the facts at trial.
At the sentencing hearing, the government moved for judicial notice of the trial and offered evidence of other criminal acts. Specifically, it offered, and the court received, the grand jury testimony of Vernon Elmore; the proffer interview of Ron Newman; the report of a shooting incident on April 27, 2005; the proffer interviews of Shannon Reed and Otis Simmons; and a police report of law enforcement observation of Haynie in possession of firearm on September 15, 2009. SeeFiling No. 698, Index of Evid., Exs. 134 to 138.
In the PSR, based primarily on the prosecutor's version of events, the Probation Office outlines as overt acts incidents involving Richard Johnson and Michael Liggins. Haynie objects to those portions of the PSR. Those alleged incidents, characterized as attempted murder, are the basis for the Probation Office's attribution of base offense levels of 33 and a total offense level of 35. Essentially, the defendant argues that, although there is a preponderance of evidence to support using overt acts of drug trafficking as racketeering offenses, the government has not proved the attempted murder conduct by even a preponderance of evidence. He argues that base offense levels of 19 should be assigned to his drug trafficking grouped conduct under U.S.S.G. § 2E1.1(a)(1) and to his other grouped conduct (assault rather than attempted murder) under U.S.S.G. 2E1.1(b). The government, on the other hand, argues for the statutory maximum sentence. Filing No. 700. It contends that the court should find Haynie culpable for the attempted murders of Michael Liggins and Richard Johnson.


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A writ of habeas corpus is used to challenge the lawfulness of imprisonment, conditions of confinement, or other actual or constructive restraint on personal liberty. This writ is typically used to challenge the validity of the petitioner's conviction or sentence when facts supporting the claim are not apparent from the trial record. A writ of habeas corpus can be a tool used to vacate a conviction for immigration purposes if the defendant did not know that the conviction he or she entered into would cause them to suffer adverse immigration consequences.
The appropriate means of raising a claim of ineffective assistance of counsel is either by direct appeal or by a petition of a writ of habeas corpus. Both the United States Constitution and the California Constitution give a criminal defendant the right to assistance of counsel. The right to counsel entitles a defendant to effective counsel. The standard against which counsel's effectiveness will be measured is that of "reasonably competent" attorney who acts as a "dilegent conscientious advocate." Under this standard a defendant may reasonably expect that before counsel undertakes to act at all he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation. In short strategic choices made after inadequate investigation fall short of providing effective assistance if "reaasonable professional judgment" would not support the limitation on investigation. In order for a defendant to demonstrate that ineffective assistance requires reversal of his convictionb he must demonstrate first, that his counsel's performance was deficient, and second, that he was prejudiced by that deficiency.
This standard requires defense counsel to aid the defendant in reaching a decision regarding a plea agreement by advising a defendant, after appropriate investigation, of the alternatives available and of considerations deemed important by defense counsel or the defendant in reaching a decision.
Before a court can accept a defendant's plea, a court must first make a finding that a guilty plea (guilty or no contest) was made voluntarily, knowingly, and intelligently by the defendant entering the plea. In re Johnson (1965). Case law has held that a prosecutor and the court can later prove that a defendant entered a plea voluntarily, knowingly, and intelligently if the court docket or minute order states that the plea was entered "knowingly, intelleigently and understaningly made". People v. Garcia (1979).
Convictions based on a plea of guilty must also be supported by a record of the plea that contains direct evidence that the accused was advised of the right to jury trial, to confront witnesses, and against self- incrimination, and that he or she "kowingly and intelligently" waived each of those three rights. The court record must also show that the defendant knew both the nature of the chanfe and the consequences of entering a plea of guilty. Boykin v. Alabama (1969), In re Tahl (1969).
The Boykin- Tahl rights are a powerful protection for defendants accused of crimes. These protections extend to defendants that are entering a plea of guilty or no contest.
To aid the defendant in reaching a decision regarding a plea agreement, defense counsel, after appropriate investigation, should advise the defendant of the alternatives available and of considerations deemed important by defense counsel or the defendant in reaching the decision. Before a person accussed of a crime can enter a plea of guilty or no contest in court before a judge, the judge must advise the defendant of the direct consequences of the plea. Bunnell v. Superior Court (1975). Judges ensure that a defendant understands what they are doing by making a defendant fill out a form with his or her attorney. If the defendant does not speak English then an interpreter will read the form to the defendant in his or her language. This form has several different names depending on the court and is referred to as a "change of plea form" or a "Tahl Form" or even an "advisement of rights form. The waiver of rights form essentially asks the defendant to intial away rights and disclosures of consequences of entering the plea to a conviction.
The court record must also reflect that the defendant is aware that the charge to which he or she is pleading guilty is a consitutionally valid charge. In re Tahl (1969).
According to the California Constitution an accused defendant unrepresented by counsel must be advised of and waive the right to counsel before entering a plea of guilty or no contest. Before the court must be satisfied that the defendant understands that he or she has the right to an attorney, and a defendant who does not wish to be represented by counsel must so state in open court. People v. Chadd (1981).
How is Habeas Corpus Motion Used?
Habeas corpus relief today is mostly used after a conviction on state or federal charges, as a way for prisoners to challenge the legality of the application of laws that resulted in detention. Habeas corpus is used in determining certain aspects of criminal cases, such as, whether there is an adequate basis for detaining a person? Whether the case should be moved to another type of court, state or federal? Whether bail or parole should be denied?
What is Habeas Corpus Relief?
How to get started in a Habeas Corpus Petition?
Many times a Habeas Corpus petition is a last ditch effort to help an individual that is facing deportation as a result of the conviction. In the context of an immigration action a habeas corpus petition can be used to vacate an unjust conviction. An immigrant seeking post conviction relief as a result of being placed in immigration proceedings must start the habeas corpus process with an investigation into the circumstances of the conviction. This would be the first step no matter if the non citizen defendant was convicted by plea of jury trial. Whether one was convicted by guilty or no contest plea or jury trial is a big distinction and can change the course of an investigation. For instance if the non citizen defendant was convicted by a plea then the circumstance of the plea are investigated. Just some of the questions that are raised are whether the non citizen's attorney advised appropriately about the immigration consequences of the plea. Another issue that can be investigated is whether the non citizen defendant had a knowing and intelligent understanding of the immigration consequences of the plea. If the defendant was convicted by jury trial then the circumstances of the jury trial must be examined. Regardless of how the conviction came about it is important that the first step be a thorough investigation into the circumstances of the case. Once a thorough investigation has been completed then a skilled attorney will be able to determine what the appropriate steps are to seek the requested post conviction relief.
The person petitioning for habeas corpus relief must be in custody when the petition is filed. Someone held in state custody must exhaust all state remedies including state appellate review before petitioning for habeas corpus relief in federal court.
Under California law, individuals in either actual or constructive custody may file a petition challenging the constitutionality of a conviction or sentence by filing a habeas corpus petition. Once a person is no longer in custody (i.e., they are no longer in jail or prison or on probation or parole), courts no longer have jurisdiction over a habeas petition. See People v. Picklesimer, 48 Cal. 4th 330 (party no longer in constructive custody may not file a write of habeas corpus); People v. Villa 45 Cal. 4th 1063 (2009).
A habeas corpus petition may be filed in the superior court , the court of appeal or the supreme court, but a petition filed in a reviewing court must state the petitioner's reasons for not filing in the superior court.


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Afanas'ev E.S., Goleneva L.M., Kazantseva V.V., Kovriga O.V., Kurskaya E.A., Markov V.A., Petunova M.D.
Synthesis of the functionally substituted [2.2]paracyclophanes, their usage for the preparation of the chiral catalysts, coordination compounds and polymers.
2. Project P-7. 2009 — 2010. «Elaboration of the chemo-, egion- and stereoselective techniques for the synthesis of novel planar chiral quinoid and semiquinoid structures based on [2.2]paracyclophane» (Principle Investigator PhD Sergeeva E. V.) in the frame of the Presidium RAS Fundamental Investigations Program «Elaboration of the methods of the preparation of chemical compounds and creation of novel materials» (Program coordinator academician V. A. Tartakovsky) by direction «Development of the methodology of organic synthesis and creation of compounds with valuable applied properties» (the Head of the Program Direction academician Yu. N. Bubnov).
1. А.А. Askadski., L.M. Goleneva, K.A. Bychko, O.V. Afonicheva Synthesis and investigation of mechanical behavior of the gradient-modulus polymeric materials based on polybutadienediol rubber. //Polymer Sci. 2008. A50. №7. P.781791.
2. N. V. Vorontsova, V. I. Rozenberg, E. V. Sergeeva, E. V. Vorontsov, Z. A. Starikova, K. A. Lyssenko, H. Hopf, Symmetrical Tetrasubstituted [2.2]Paracyclophanes: their Systematization and Regioselective Synthesis of Several Types of Bis-Bifunctional Derivatives by Double Electrophilic Substitution. //Chem. Eur. J. 2008. 14. P.4600-4617.
3. Goleneva L.M., Askadskii А.А., Petunova M.D., Kovriga O.V. Gradient-modulus polyurethaneisocyanurate materials based on polypropyleneglycol as prepared by one step processes. //Plasticheskie Massy. 2008. №6. P. 17 — 22. (Rus).
4. M.D. Petunova, A.A. Askadskii, L.V. Luchkina, O.V. Kovriga. Synthesis and Propertis of Polyisocyanurate Networks Based on 2,4-Tolyene Diisocyanate. // Polymer Sci.. 2009. А51. № 5. Р. 576 — 582.
5. А.А. Askadski., V.A. Markov, A.V. Golovanov, O.V. Pachneva, M.N. Popova, O.V. Kovriga, O.L. Lependina, V.V. Kazanzeva, М.I. Buzin, А.А. Korlukov Analyses of Stress Relaxation in the Nonlinear Region of Mehanical. //Polymer Sci.. 2009. А51. № 5. Р. 838 — 844.
6. L.М. Goleneva, А.А Askadskii. One-Sage Synthesis of Network Poly(urethane-isocyanurate) Polymers. //Polymer Sci. 2009. С51. № 1. P. 26 — 34.
7. Samoilova N., Kurskaya E., Krayukhina M., Askadskii A., Yamskov I..
of Silver Nanoparticles. //J. Phys. Chem., 2009. B113. №11. Р. 3395-3403.
8. Marchenkov А. V., Goleneva L.M, Askadskii Аndr. Аl., Kurskaya Е. А., Askadskii Аl. Аndr. Polymeric paint and varnish composition based on polycarbonate. //Plasticheskie Massy. 2009. №. 6. Р. 45 — 49. (Rus).
10. Elena V. Sergeeva, Ivan A. Shuklov, Dmitrii Yu. Antonov, Natalia V. Vorontsova, Evgenii V. Vorontsov, Zoya A. Starikova, Michail M. Il’in, Valeria I. Rozenberg, Resolution approaches to enantiomers of 4-formyl[2.2]paracyclophane. //Tetrahedron: Asymmetry. 21. 2010. Р. 1004-1010.
11. E.S. Afanas'ev, M.D. Petunova, L.M. Goleneva, A.A. Askadskii, T.P. Klimova, and T.A. Babushkina. The effect of the conditions of formation of crosslinked polyurethane on the degree of crosslinking and mechanical characteristics //Polymer Sci. 2010. A. Vol. 52. №12. P. 1318 - 1326.
А.Askadsky, Е. Kurskaya, N.Samoilova, I.Yamskov. Composition as a bactericidal agent, the method of obtaining the material on its basis and the macroporous bactericidal substance based on this composition. Favourable decision 2009128492/15(039546) from 01.06.2010 for 2009128492 RF patent application from 23.07.2009.

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While producing the image of environment we need to have some a-priori information of its velocity model. Finite-difference kinematic migration of the field of refracted waves makes possible to describe the deep location of refracting boundary as well as the values of velocity in overlying series that is enough for subsequent formation of environment image applying dynamic migration. An algorithm has been proposed and software support of finite-difference kinematic migration of the field of refracted waves in case of formation of the image of environment according to DSS data taking into account their special features, which effectiveness is demonstrated by model and practical materials.
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