In pleading to a preceding pleading, a party shall set forth affirmatively (1) accord and satisfaction, (2) arbitration and award, (3) assumption of risk, (4) contributory negligence, (5) discharge in bankruptcy, (6) duress, (7) estoppel, (8) failure of consideration, (9) fraud, (10) illegality, (11) injury by fellow servant, (12) laches, (13) license, (14) payment, (15) release, (16) res judicata, (17) statute of frauds, (18) statute of limitations, (19) waiver, and (20) any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, on such terms as justice may require, shall treat the pleading as if there had been a proper designation.
Accord and satisfaction is an affirmative defense to a breach of contract enumerated in Minnesota Rules of Civil Procedure 8.03. All affirmative defenses, including accord and satisfaction, must be stated in a pleading. Minn. R. Civ. P. 8.03. The most common use of an affirmative defense is in a defendant’s Answer to a Complaint.
In analyzing the definition of accord and satisfaction, Minnesota courts have held “accordis ‘a contract in which a debtor offers a sum of money, or some other stated performance, in exchange for which a creditor promises to accept the performance in lieu of the original debt.’” Nelson v. Am. Family Ins. Group, 651 NW2d 499, 512 (Minn. 2002) quoting Webb Bus. Promotions, Inc. v. Am. Elecs. & Entm’t Corp., 617 NW2d 67,72 (Minn. 2000) (emphasis added). And “[s]atisfaction is the performance of the accord, generally acceptance of money, which operates to discharge the debtor’s duty as agreed to in the accord.” Nelson, 615 NW2d at 512 quoting Webb, 617 NW2d at 72 (emphasis added).
The purpose of accord and satisfaction was to promote dispute resolution without the need for judicial intervention. Nelson, 615 NW2d at 512. Accord and satisfaction allows the creditor to accept an alternate form of payment, one different than originally agreed upon, and discharges the debtor from all debt owed to the creditor. Id.
For a party to successfully claim the affirmative defense of accord and satisfaction to a breach of contract claim, the party must prove “(1) the party, in good faith, tendered an instrument to the claimant as full satisfaction of the claim; (2) the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim; (3) the amount of the claim was unliquidated or subject to a bona fide dispute; and (4) the claimant obtained payment of the instrument.” Id. The four-step process established by the Supreme Court of Minnesota in Nelson basically states that the debtor and claimant agreed on an amount that the debtor could pay the claimant to satisfy the debtor’s debt, the claimant put into writing his satisfaction with the agreed upon amount, and the payment was actually received by the claimant. All four steps must be satisfied in order to be successful on an accord and satisfaction defense. See AgCountry Farm Credit Servs. v. Oelke, 2005 Minn. App. Unpub. LEXIS 171 (Minn. App. August 16, 2005) (holding since creditor did not agree that payment would satisfy full satisfaction of the claim, steps (1)-(3) were not satisfied, and therefore debtor could not be successful on an accord and satisfaction defense).
Arbitration and award is an affirmative defense to a breach of contract enumerated in Minnesota Rules of Civil Procedure 8.03. All affirmative defenses, including arbitration and award, must be stated in a pleading. Minn. R. Civ. P. 8.03. The most common use of an affirmative defense is in a defendant’s Answer to a Complaint.
Arbitration is a form of dispute resolution that can be an attractive alternate to the judicial system because of its low cost and ability to resolve disputes quickly. Minnesota statue states arbitration is a “valid, enforceable, and irrevocable” method of resolving controversies, including contract disputes. Minn. Stat. § 572.08 (2009).
If a party claims the affirmative defense of arbitration and award, the party is expressly stating that the controversy should be resolved in arbitration and not in the judicial system. The affirmative defense of arbitration and award must be in the party’s pleading, “[f]ailure to do so may constitute waiver of the defense.” West St. Paul Federation of Teachers v. Independent School District No. 197, West St. Paul, Minnesota, 713 N.W.2d 366, 377 (Minn. App. 2006). Minnesota courts will reject a party’s claim of arbitration if the party participates in judicial litigation first and then claims the affirmative defense of arbitration and award at a later time. See Driveway Design, LLC, Appellant, vs. Johnson and Johnson Land Development, LLC, et al., 2009 Minn. App. Unpub. LEXIS 658 (Minn. App. June 16, 2009) (denying appellant’s claim to arbitration after it filed an Answer without claiming the affirmative defense of arbitration and award).
If a party pleads the affirmative defense of arbitration and award, the court will consider a motion to compel arbitration, which will effectively dismiss the judicial action and send the dispute to arbitration. When considering a motion to compel arbitration, the court will look to “(1) whether a valid arbitration agreement exists, and (2) whether the dispute falls within the scope of the arbitration agreement.” Amdahl, et al., v. Green Giant Company, d/b/a the Pillsbury Company, 497 N.W.2d 319, 322 (Minn. App. 1993).
Assumption of risk is an affirmative defense to a breach of contract enumerated in Minnesota Rules of Civil Procedure 8.03. All affirmative defenses, including assumption of risk, must be stated in a pleading. Minn. R. Civ. P. 8.03. The most common use of an affirmative defense is in a defendant’s Answer to a Complaint.
Assumption of risk is “[t]he principle that one who takes on the risk of loss, injury, or damage cannot maintain an action against a party that causes the loss, injury, or damage.” Black’s Law Dictionary, 143 (9th Ed. 2009). The Minnesota Supreme Court defined assumption of risk as “the defendant owes a limited duty of care to the plaintiff with respect to the risk incident to their relationship.” Olson v. Hansen, 216 N.W.2d 124, 127 (Minn. 1974).
A common example of a party voluntarily encountering a known or appreciated danger is when parents sign their children up for youth sports and sign a waiver contract (also known as exculpatory contracts). In Wu, the mother signed a waiver contract to allow her daughter to participate in extracurricular activities at the high school, and the daughter was subsequently injured while playing golf. 393 F.Supp.2d at 833-836. In denying the high school’s affirmative defense of assumption of risk, the court held the high school was not free from liability because of “enhancement of risk, negligent maintenance of a facility, or negligent supervision of a sporting activity.” Id. at 837. The Wu court was cautious with its decision to invalidate the waiver contract, but reasoned that assumption of risk “does not bar a claim where a defendant’s conduct has enhanced the risk of an activity.” Id. at 836.
Contributory negligence is an affirmative defense to a breach of contract enumerated in Minnesota Rules of Civil Procedure 8.03. All affirmative defenses, including contributory negligence, must be stated in a pleading. Minn. R. Civ. P. 8.03. The most common use of an affirmative defense is in a defendant’s Answer to a Complaint.
Contributory negligence is a claim by a defendant that the “plaintiff’s own negligence … played a part in causing the plaintiff’s injury and that is significant enough to bar the plaintiff form recovering damages.” Black’s Law Dictionary, 1134 (9th Ed. 2009). The defendant is shifting the blame from himself to the plaintiff.
However, Minnesota Statute states contributory negligence does not bar recovery “if the contributory fault [by plaintiff] was” less than defendant’s fault. Minn. Stat. § 604.01. The Statute further states, “any damages allowed must be diminished in proportion to the amount of fault attributable to the person recovering [plaintiff].” Id.
Discharge in bankruptcy is an affirmative defense to a breach of contract enumerated in Minnesota Rules of Civil Procedure 8.03. All affirmative defenses, including discharge in bankruptcy, must be stated in a pleading. Minn. R. Civ. P. 8.03. The most common use of an affirmative defense is in a defendant’s Answer to a Complaint.
A party who files for bankruptcy is named a “debtor.” When a debtor initiates a bankruptcy proceeding, the Bankruptcy Code restricts all proceedings against the debtor’s property.Bernick v. Caboose Enterprises, Inc., 395 N.W.2d 412, 413 (Minn. App. 1986). This is also called a stay in judicial proceedings. The affirmative defense of discharge in bankruptcy will protect a debtor from being named as a defendant in a civil action. The public policy reasons behind the stay in judicial proceedings for the debtor are it allocates the “debtor a breathing spell from his creditors. It stops all collection efforts, all harassment, and all foreclosure actions. It permits the debtor to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that drove him into bankruptcy.” Id at 414.
A court, State or federal, does not have discretion to hear a case involving a debtor who has initiated a bankruptcy proceeding. The Bankruptcy Code strips all courts of jurisdiction to hear actions against the debtor. Id. See Borg-Warner Acceptance Corp. v. Hall, 685 F.2d 1306, 1308 (11th Cir. 1982) (“Actions taken in violation of the automatic stay are void and without effect”). A defendant who has initiated a bankruptcy proceeding can successfully claim discharge in bankruptcy as an affirmative defense to any breach of contract lawsuit.
Duress is an affirmative defense to a breach of contract enumerated in Minnesota Rules of Civil Procedure 8.03. All affirmative defenses, including duress, must be stated in a pleading. Minn. R. Civ. P. 8.03. The most common use of an affirmative defense is in a defendant’s Answer to a Complaint.
A party claiming duress must prove the other party induced the contract by threat with either actual force or an unlawful threat of death or bodily harm. If an aggrieved party’s manifestation of assent is induced by an improper threat by the other party that leaves the aggrieved party no reasonable alternative, the contract is voidable by the aggrieved party. Restatement, Second of Contracts § 175. In plain terms, if one party to a contract (1) threatens the other party and (2) leaves the other party with no reasonable alternative, the contract is voidable. A voidable contract (also known as an “avoidable contract”) is a contract in which the aggrieved party has the option to either enforce the contract or cancel the contract.
The Restatement defines an improper threat to a fair contract as “if (a) what is threatened is a crime or a tort, or the threat itself would be a crime or a tort if it resulted in obtaining property; or (b) what is threatened is a criminal prosecution; or (c) what is threatened is the use of civil process and the threat is made in bad faith; or the threat is a breach of the duty of good faith and fair dealing under a contract with the recipient.” Restatement, Second of Contracts § 176(1). The Restatement defines an improper threat to an unfair contract as “ (a) the threatened act would harm the recipient and would not significantly benefit the party making the threat; or (b) the effectiveness of the threat in inducing the manifestation of assent is significantly increased by prior unfair dealing by the party making the threat; or(c) what is threatened is otherwise a use of power for illegitimateends.” Restatement, Second of Contracts § 176(2). Basically, if the contract’s terms are fair, it is more difficult for the aggrieved party to prove there was an improper threat in making the contract; if the contract’s terms are intrinsically unfair, it is easier for the aggrieved party to prove there was an improper threat in forming the contract.
Minnesota courts have further limited duress as an affirmative defense, holding “a claim of duress will not be sustained when the claimant entered into the contract with full knowledge of all the facts, advice from an attorney, and ample time for reflection.” Id. The fact that the aggrieved party had knowledge of the facts that he now alleges caused him harm, had advice from an attorney, and time to reflect on the terms of the contract will cause Minnesota courts to reject a claim of duress. All of the abovementioned elements will prove the aggrieved party in fact did have a reasonable alternative. Proof of the reasonable alternative is most evidenced by the aggrieved party’s reliance on attorney advice.
Estoppel is an affirmative defense to a breach of contract enumerated in Minnesota Rules of Civil Procedure 8.03. All affirmative defenses, including estoppel, must be stated in a pleading. Minn. R. Civ. P. 8.03. The most common use of an affirmative defense is in a defendant’s Answer to a Complaint.
A defendant can plead two types of estoppel as an affirmative defense: promissory estoppel and collateral estoppel.
The Restatement defines promissory estoppel as (1) a promise that the promisor knows or reasonably should know will induce action and (2) a promisee acts or refrains from acting based on the promisor’s promise. Restatement, Second of Contracts § 90. If a promisor makes a promise he knows (or reasonably should know) will induce action or forbearance on behalf of the aggrieved party and the aggrieved party acts (or fails to act) relying on that promise, the aggrieved party can claim promissory estoppel. The Restatement further states that the promise is binding if injustice can be avoided by enforcement of the promise. Id. The aggrieved party can use the affirmative defense of promissory estoppel to claim that he acted (or refrained from acting) in response to the other party’s promise.
Minnesota courts address promissory estoppel frequently. In 2010, the Court of Appeals of Minnesota stated a party “invoking estoppel must show that she reasonably relied to her detriment on material misrepresentations made by” the other party. Singelman v. St. Francis Med. Ctr., 777 N.W.2d 540, 543 (Minn. App. 2010). The Supreme Court of Minnesota held “[a]n essential element of estoppel is that the party asserting the estoppel acted, or failed to act, in reliance upon the representation claimed to give rise to the estoppel, whereby he has changed his position for the worse.” Stribling v. Fredericks, Clark & Co., Inc., 300 Minn. 525, 526, (1974).
Collateral estoppel, commonly referred to as issue preclusion, is a very different doctrine from promissory estoppel. The Minnesota Supreme Court outlined collateral estoppel as “once an issue is determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation.” Kaiser v. N. States Power Co., 353 N.W.2d 899, 902 (Minn. 1984). The doctrine of collateral estoppel prevents a plaintiff from suing a defendant after that plaintiff previously sued the same defendant on the same issue, and that prior court entered final judgment on that issue. The key to collateral estoppel is that the issue must be the same and the parties to the prior lawsuit must be the same as the parties to the current lawsuit. The Minnesota Supreme Court has outlined four elements that must be satisfied to plead collateral estoppel as an affirmative defense: “(1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.” Willems v. Comm’r of Pub. Safety, 333 N.W.2d 619, 621 (Minn. 1983). Collateral estoppel is similar to the doctrine of res judicata that is addressed below.
Failure of consideration is an affirmative defense to a breach of contract enumerated in Minnesota Rules of Civil Procedure 8.03. All affirmative defenses, including failure of consideration, must be stated in a pleading. Minn. R. Civ. P. 8.03. The most common use of an affirmative defense is in a defendant’s Answer to a Complaint.
The classic definition of the formation of a contract includes offer, consideration and acceptance. The affirmative defense of failure of consideration is pleaded when the defendant claims there was no consideration in forming the contract, and therefore the contract is void. The Restatement echoes the classic definition of a contract by defining the formation of a contract as a “bargain in which there is a manifestation of mutual assent to the exchange and a consideration.” Restatement, Second of Contracts § 17. The Restatement further defines consideration, stating “a performance or a return promise must be bargained for.” Restatement, Second of Contracts § 71(1). A performance can be payment (such as “I hereby give you $5 in consideration…”) or a return promise. A contract that includes a promise and a return promise is a bilateral contract, because both parties to the contract have promised something and no action on behalf of either party has occurred when the contract was formed. A bilateral contract is complete once both parties perform their promises.
A defendant will plead the affirmative defense of failure of consideration if he (or the other contracting party) either did not perform for the contract or did not give a return promise for the contract. When a defendant pleads the affirmative defense of failure of consideration, the burden is on the defendant to prove the contract was lacking consideration. Penn Mut. Life Ins. Co. v. Utne, 207 F. Supp. 521, 524 (D. Minn. 1962). If the defendant meets its burden of proving failure of consideration, “a contract valid when formed becomes unenforceable because the performance bargained for has not been rendered.” Franklin v. Carpenter, 309 Minn. 419, 422, (1976). As the Minnesota Supreme Court in Franklinstated, the previously valid contract becomes enforceable when the defendant proves the contract lacked consideration. “Where a promisor received what he bargained for, however, there is no failure of consideration.” In re MJK Clearing, Inc., 408 F.3d 512, 515 (8th Cir. 2005).
Fraud is an affirmative defense to a breach of contract enumerated in Minnesota Rules of Civil Procedure 8.03. All affirmative defenses, including fraud, must be stated in a pleading. Minn. R. Civ. P. 8.03. The most common use of an affirmative defense is in a defendant’s Answer to a Complaint.
The Restatement has established two types of fraud: fraud in the inducement and fraud in the factum.
Fraud in the inducement requires one party to a contract to make some sort of statement or active nondisclosure which has induced the aggrieved party’s actions. Restatement, Second of Contracts § 167. If fraud in the inducement is proven, the contract becomes voidable. A voidable contract (also known as an “avoidable contract”) is a contract in which the aggrieved party has the option to either enforce the contract or cancel the contract. The Restatement further defines fraud in the inducement as “[a] misrepresentation induces a party’s manifestation of assent if it substantially contributes to his decision to manifest assent.” Id.
Fraud in the factum requires one party to a contract misrepresenting the terms of the contract to the aggrieved party. Restatement, Second of Contracts § 163. If fraud in the factum is proven, the contract becomes void. A contract that is deemed void becomes null and inoperative, even if the aggrieved party wishes to enforce the terms of the contract. The Restatement further defines fraud in the factum as “[i]f a misrepresentation as to the character or essential terms of a proposed contract induces conduct that appears to be a manifestation of assent by one who neither knows nor has a reasonable opportunity to know of the character or essential terms of the proposed contract, his conduct is not effective as a manifestation of assent.” Id.
The Minnesota Supreme Court has created a five-step test that must be satisfied for a party to claim fraud: “(1) there was a false representation by a party of a past or existing material fact susceptible of knowledge; (2) made with knowledge of the falsity of the representation or made as of the party’s own knowledge without knowing whether it was true or false; (3) with the intention to induce another to act in reliance thereon; (4) that the representation caused the other party to act in reliance thereon; and (5) that the party suffer[ed] pecuniary damage as a result of the reliance.” Hoyt Properties, Inc. v. Prod. Res. Group, L.L.C., 736 N.W.2d 313, 318 (Minn. 2007). In Hoyte Properties, the Minnesota Supreme Court combined both fraud in the inducement and fraud in the factum for a party to plead fraud.
An example of fraud is if one party “secretly substitute[s] one type of document for another.” BankCherokee v. Insignia Dev., LLC, 779 N.W.2d 896, 900 (Minn. App. 2010). However, the Minnesota Court of Appeals in BankCherokee limited when a party can plead fraud even when the other party was in fact fraudulent: “one party’s misrepresentation as to the nature of a proposed contract does not amount to fraud . . . if the other party had a reasonable opportunity to acquaint himself with the contract and failed to do so.” Id.
Illegality is an affirmative defense to a breach of contract enumerated in Minnesota Rules of Civil Procedure 8.03. All affirmative defenses, including illegality, must be stated in a pleading. Minn. R. Civ. P. 8.03. The most common use of an affirmative defense is in a defendant’s Answer to a Complaint.
Contracts in Minnesota have been protected by the State courts: “[c]ourts should not invalidate enforceable promises except in the clearest of cases.” Cohen v. Cowles Media Co., 479 N.W.2d 387, 391 (Minn. 1992). The general rule is that contracts for performance of illegal conduct are unenforceable and void. The Minnesota Court of Appeals addressed this, stating “the application of the doctrine of in pari delicto is appropriate for (1) preventing enforcement of a contract the performance of which is illegal.” Brubaker v. Hi-Banks Resort Corp., 415 N.W.2d 680, 684 (Minn. App. 1987). The Supreme Court of Minnesota has held “anyone who engages in a fraudulent scheme forfeits all right to protection, either at law or in equity.” State by Head v. AAMCO Automatic Transmissions, Inc., 293 Minn. 342, 347 (1972).
A plaintiff who sues a defendant for breach of contract when the contract was for an illegal activity will be unsuccessful if the defendant raises the affirmative defense that the contract was for the performance of an illegal act.
Injury by fellow servant is an affirmative defense enumerated in Minnesota Rules of Civil Procedure 8.03. All affirmative defenses, including injury by fellow servant, must be stated in a pleading. Minn. R. Civ. P. 8.03. The most common use of an affirmative defense is in a defendant’s Answer to a Complaint.
The doctrine of injury by fellow servant has common law roots. The Supreme Court of Minnesota stated the injury by fellow servant doctrine in an 1880 opinion, holding “as a general rule the master is not liable to one servant for an injury caused by the negligence of another servant in the same common employment.” Brown v. Winona & St. P.R. Co., 27 Minn. 162, 163, (1880).
Laches is an affirmative defense enumerated in Minnesota Rules of Civil Procedure 8.03. All affirmative defenses, including laches, must be stated in a pleading. Minn. R. Civ. P. 8.03. The most common use of an affirmative defense is in a defendant’s Answer to a Complaint.
Laches is an “equitable doctrine by which a court denies relief to a claimant who has unreasonably delayed in asserting the claim, when that delay has prejudiced the party against whom relief is sought.” Black’s Law Dictionary, 953 (9th Ed. 2009). The Restatement has defined the doctrine of laches as “[i]n proceedings in equity, a person otherwise entitled to restitution is barred from recovery if he has failed to bring or, having brought has failed to prosecute, a suit for so long a time and under such circumstances that it would be inequitable to permit him now to prosecute the suit.” Restatement, First of Restitution § 148(1).
The Supreme Court of Minnesota defined three scenarios where the doctrine of laches is applicable: “[a] suit in equity for restitution is barred by the lapse of time only if it would be unjust to allow the complainant to maintain it. The existence of such injustice depends on (a) whether the complainant has been unreasonable in his delay after learning the facts, or (b) whether the delay has made it unfair to permit the suit either because of hardship to the defendant or to third persons by reason of a change in circumstances, or (c) whether the lapse of time has made it difficult to ascertain the facts so that a substantial chance of arriving at an erroneous decision exists.” Knox v. Knox, 222 Minn. 477, 486, (1946).
The Supreme Court of Minnesota commented on the doctrine laches, stating, “[a] party who comes into a court of equity must act with reasonable diligence, under all the circumstances, or he is chargeable with laches.” Lindquist v. Gibbs, 122 Minn. 205, 208 (1913). The Lindquist court further narrowed circumstances where a defendant can claim the affirmative defense of laches when a party delayed because of mistake, “[b]ut where it is sought to rescind a contract or deed on the ground of mistake, a party is not guilty of laches until he discovers the mistake, or until he is chargeable with knowledge of facts from which, in the exercise of proper diligence, he ought to have discovered it.” Id. The relaxation of the doctrine of laches due to mistake allows plaintiffs more flexibility in bringing suit, even when the delay in brining suit prejudices the defendant.
License is an affirmative defense to a breach of contract enumerated in Minnesota Rules of Civil Procedure 8.03. All affirmative defenses, including license, must be stated in a pleading. Minn. R. Civ. P. 8.03. The most common use of an affirmative defense is in a defendant’s Answer to a Complaint.
Payment is an affirmative defense enumerated in Minnesota Rules of Civil Procedure 8.03. All affirmative defenses, including payment, must be stated in a pleading. Minn. R. Civ. P. 8.03. The most common use of an affirmative defense is in a defendant’s Answer to a Complaint.
Generally, payment is when the defendant has satisfied the plaintiff’s claim prior to litigation by “[p]erformance of an obligation by the delivery of money or some other valuable thing accepted [by plaintiff] in partial or full discharge of the obligation.” Black’s Law Dictionary, 1243 (9th Ed. 2009). In pleading the affirmative defense of payment, the defendant bears “the burden of showing payment” was received and accepted by plaintiff.Marshall & Illsley Bank v. Child, 76 Minn. 173, 177 (1899).
Minnesota courts have allowed for payment to be satisfied if the defendant’s insurer paid the plaintiff, holding “in property-damage cases, where the [defendant]’s insurer makes a payment directly or indirectly to the injured party, such payment shall offset the [defendant]’s liability to the injured party.” VanLandschoot v. Walsh, 660 N.W.2d 152, 156 (Minn. App. 2003).
Release is an affirmative defense enumerated in Minnesota Rules of Civil Procedure 8.03. All affirmative defenses, including release, must be stated in a pleading. Minn. R. Civ. P. 8.03. The most common use of an affirmative defense is in a defendant’s Answer to a Complaint.
The Court of Appeals of Minnesota defined release as “an agreement not to enforce a legal cause of action against a party to the agreement. One party was, therefore, released upon signing from being required to defend a legal action. The other party was obligated not to sue.” Petition of Anderson, 565 N.W.2d 461, 464 (Minn. App. 1997). The Supreme Court of Minnesota compared a release to a contract, stating “[a]s with any contract, a release requires consideration, voluntariness, and contractual capacity.” Karnes v. Quality Pork Processors, 532 N.W.2d 560, 562 (Minn. 1995).
In determining the validity of a release, Minnesota courts consider the following factors: “(a) The length of period between the injury and the settlement; (b) the amount of time elapsed between the settlement and the attempt to avoid the settlement; (c) the presence or absence of independent medical advice of plaintiff’s own choice before and at the time of the settlement; (d) the presence or absence of legal counsel of plaintiff’s own choice before and at the time of the settlement; (e) the language of the release itself; (f) the adequacy of consideration; (g) the competence of the releasor; and (h) whether the injury complained of by the releasor was an unknown injury at the time of the signing of the release or merely a consequence flowing from a known injury.” Id.
Res Judicata is an affirmative defense enumerated in Minnesota Rules of Civil Procedure 8.03. All affirmative defenses, including res judicata, must be stated in a pleading. Minn. R. Civ. P. 8.03. The most common use of an affirmative defense is in a defendant’s Answer to a Complaint.
Res judicata, also known as claim preclusion, is defined as “[a]n affirmative defense barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been – but was not – raised in the first suit.” Black’s Law Dictionary, 1425 (9th Ed. 2009). The Supreme Court of Minnesota has defined the doctrine of res judicata as “a final judgment on the merits bars a second suit for the same claim by parties or their privies.” Kaiser v. N. States Power Co., 353 N.W.2d 899, 902 (Minn. 1984).
Res judicata is very similar to the doctrine of collateral estoppel (issue preclusion). The Supreme Court of Minnesota has differentiated between res judicata and collateral estoppel, stating “[t]he effect of res judicata on a judgment or final order has at least two distinct and important aspects: (1) merger or bar; and (2) collateral estoppel. The principles of merger and bar operate where a subsequent action or suit is predicated on the same cause of action which has been determined by a judgment, no matter what issues were raised or litigated in the original cause of action. On the other hand, the principle of collateral estoppel operates as to matters which were actually litigated and determined by, and essential to, a previous judgment, irrespective of whether the subsequent action is predicated upon the same or a different cause of action. In short, one stands for claim preclusion, the other for issue preclusion. It is essential to bear this distinction in mind in determining the issue in this case.” Hauser v. Mealey, 263 N.W.2d 803, 806 (Minn. 1978).
The general rule in Minnesota, dating back to 1889, is “[a] judgment on the merits constitutes an absolute bar to a second suit for the same cause of action, and is conclusive between parties and privies, not only as to every matter which was actually litigated, but also as to every matter which might have been litigated therein.” Id. at 807.
Statute of frauds is an affirmative defense to a breach of contract enumerated in Minnesota Rules of Civil Procedure 8.03. All affirmative defenses, including statute of frauds, must be stated in a pleading. Minn. R. Civ. P. 8.03. The most common use of an affirmative defense is in a defendant’s Answer to a Complaint.
Statute of limitations is an affirmative defense to a breach of contract enumerated in Minnesota Rules of Civil Procedure 8.03. All affirmative defenses, including statute of limitations, must be stated in a pleading. Minn. R. Civ. P. 8.03. The most common use of an affirmative defense is in a defendant’s Answer to a Complaint.
Waiver is an affirmative defense to a breach of contract enumerated in Minnesota Rules of Civil Procedure 8.03. All affirmative defenses, including waiver, must be stated in a pleading. Minn. R. Civ. P. 8.03. The most common use of an affirmative defense is in a defendant’s Answer to a Complaint.


§ 425.010 Finding and Determination of Necessity.
§ 425.020 Acceptance of Application of State Enabling Act.
§ 425.040 Determination of Blight.
§ 425.050 Submission of Proposed Development Plans.
§ 425.060 Filing of Proposed Development Plan.
§ 425.070 Contents of Development Plan.
§ 425.080 Action Upon Filing.
§ 425.100 City Council Action.
§ 425.130 Recording Contract — Filing Development Plan.
§ 425.140 Monitoring of Compliance, Time Extensions and Certification of Completion.
§ 425.150 Finance Reporting and Tax Exempt Status.
§ 425.170 Disposal of Property.
§ 425.180 Remedies For Failure To Follow Plan and Contract.
Section 425.010 Finding and Determination of Necessity.
Section 425.020 Acceptance of Application of State Enabling Act.
Section 425.040 Determination of Blight.
Section 425.050 Submission of Proposed Development Plans.
Section 425.060 Filing of Proposed Development Plan.
Section 425.070 Contents of Development Plan.
Section 425.080 Action Upon Filing.
Section 425.100 City Council Action.
Section 425.130 Recording Contract — Filing Development Plan.
Section 425.140 Monitoring of Compliance, Time Extensions and Certification of Completion.
Section 425.150 Finance Reporting and Tax Exempt Status.
Section 425.170 Disposal of Property.
Section 425.180 Remedies For Failure To Follow Plan and Contract.
It is hereby found, determined and declared by the City Council of the City of Richmond Heights, Missouri, that in certain residential, commercial and industrial portions of the City obsolete, deteriorating, substandard, insanitary or blighted areas exist, occasioned by age, obsolescence, inadequate planning, outmoded design or physical deterioration, excessive or unproductive land coverage, lack or appropriate light, air, open space, defective design or arrangement of building, lack of proper support facilities or existence of obsolete, inadequate, outmoded and poorly designed, or physically deteriorated buildings and have become economic and social liabilities and such conditions are conducive to ill health, transmission of disease, crime or inability to pay reasonable taxes, have impaired the economic value of areas infecting them with blight characterized by depreciated values, impaired investment, reduced income and consequential inability to pay reasonable taxes; that the assembly of buildings in blighted areas is essential for the clearance of blight, replanning, reconstruction and redevelopment for the removal of blight; that the existence of such conditions and the failure to clear, replan, rehabilitate, reconstruct or redevelop these areas results in progressive deterioration, cause a wasteful expenditure of public funds for policing and occasions large outlays for the creation and maintenance of public facilities and services; that such conditions require the employment of capital on an investment basis and the redevelopment of such areas under proper supervision with appropriate planning as to land use, traffic circulation and construction; that the clearance, replanning, rehabilitation, reconstruction and redevelopment of such areas on a substantial scale are necessary for the removal of blight and for the public welfare; that such obsolete, deteriorating, substandard, insanitary and blighted areas constitute a menace to the health, safety, morals and welfare of the citizens of the City. It is necessary to encourage the removal of blight and to provide procedures for its removal; the removal of blight and the procedures hereby adopted are determined to be in the public interest.
The provisions of the "Urban Redevelopment Corporations Law", Chapter 353, Revised Statutes of Missouri, 1986, as amended, are hereby accepted and shall apply to all persons and corporations operating under this Chapter, insofar as the same may be applicable thereto.
That portion of the City which the City Council has found or shall find to be blighted so that the clearance, replanning, rehabilitation or reconstruction thereof is necessary to effectuate the purposes of the Urban Redevelopment Corporations Law and this Chapter. Any such area may include buildings or improvements not in themselves blighted, and any real property, whether improved or unimproved, the inclusion of which is deemed necessary for the effective clearance, replanning, reconstruction or rehabilitation of the area of which such buildings, improvements or real property form a part.
Those portions of the City which the City Council shall determine that, by reasons of age, obsolescence, inadequate or outmoded design or physical deterioration, have become economic and social liabilities and that such conditions are conducive to ill health, transmission of disease, crime or inability to pay reasonable taxes.
The City of Richmond Heights, Missouri.
The City Clerk of the City of Richmond Heights, Missouri.
The Council of the City of Richmond Heights, Missouri.
The City Manager of the City of Richmond Heights, Missouri.
The Planning and Zoning Commission of the City of Richmond Heights, Missouri.
A plan, together with an amendments thereto, for the development of all or any part of a blighted area, which is authorized by the City Council by ordinance.
The Mayor of the City of Richmond Heights, Missouri.
Any individual, firm, partnership, joint venture, association, corporation, whether organized for profit or not (except an urban redevelopment corporation organized pursuant to the provisions of the "Urban Redevelopment Corporations Law"), estate, trust, business trust, receiver or trustee appointed by any State or Federal Court, syndicate, or any other group or combination acting as unit, and shall include the male as well as the female gender and the plural as well as the singular number.
Includes lands, buildings, improvements, land under water, waterfront property and any and all easements, franchises and hereditaments, corporeal or incorporeal, and every estate, interest, privilege, easement, franchise and right therein, or appurtenant thereto, legal or equitable, including restrictions of record created by plat, covenant or otherwise, rights-of-way, and terms for years.
The clearance, replanning, reconstruction or rehabilitation of any blighted area, and the provision for such industrial, commercial, residential or public structures and spaces as may be appropriate, including recreational and other facilities incident or appurtenant thereto.
Chapter 353 of the Revised Statutes of Missouri and any amendments thereto.
The Zoning Administrator of the City of Richmond Heights.
Prior to the authorization and approval of a development plan, or contemporaneously therewith, by the City Council by ordinance, there shall be a determination by the City Council that the redevelopment area encompassed by the development plan is a blighted area. In determining that an area is a blighted area, the Council may consider all relevant information submitted to it by interested persons, the Commission and City department and by professional consultants employed by it. The finding and determination that an area is a blighted area shall be made by ordinance and may be contained in the ordinance authorizing and approving the development plan. The ordinance finding and determining that an area is a blighted area shall contain a legal description of the blighted area and a finding that redevelopment of the blighted area is necessary and in the public interest. Prior to the adoption of an ordinance finding and determining an area to be a blighted area, the Council shall hold a public hearing. Notice of such hearing will be a published notice.
The City Council may invite interested parties to submit proposed development plans for consideration for a blighted area or an area which the City Council considers declaring a blighted area, and the City Council may designate conditions for such submission, additional information required with the submission, and the time period within which such proposed development plans must be submitted to be considered, which shall not be less than thirty (30) days and not more than one hundred eighty (180) days, as directed by the City Council, from the date such invitation shall be given.
Previously designated as a redevelopment area on the City's Master Plan or Comprehensive Plan.
Any interested party desiring to participate in the redevelopment of a blighted area which the City Council contemplates declaring a blighted area shall submit a minimum of fifteen (15) copies of a proposed development plan to the City Manager or designee of the City together with such additional information, if any, as has been requested by the City Council.
No proposed development plan shall be accepted for filing unless it is accompanied by a non-refundable filing fee to the City of five thousand dollars ($5,000.00) to be used by the City to defray expenses connected with the evaluation and review of the proposed development plan. Any interested party shall pay, when due and payable, all such other fees, licenses and other charges required by the ordinances of the City.
Legal description. A legal description of the redevelopment area by metes and bounds or other definite designation.
Design plan. A general description and preliminary design plan of the proposed redevelopment project and plans or narrative showing or describing general location of structures, general height, size and scale of structures, proposed land use, materials, general landscaping and traffic circulation.
Stages of project. A statement of the various stages, if more than one (1) is intended, by which the redevelopment project is proposed to be constructed or undertaken, and the approximate time limit for the commencement and completion of each stage, together with a legal description of the real property to be included in each stage.
Property to be demolished. A statement of the existing buildings or improvements in the redevelopment area to be demolished, if any, and an estimate of the time of such demolition.
Building rehabilitation. A statement of existing buildings to remain, if any, the proposed improved to each such building to remain and the approximate period of time during which improvements, repairs or alterations are to be made.
New construction. A statement of the general type, size, number, character and materials of each new industrial, commercial, residential or other building or improvement to be erected or made and the estimate of the timing of such construction.
Open space. A statement of those portions, if any, of the redevelopment area which may be permitted or will be required to be left as open space, the use to which each such open space is to be put, the period of time each such open space will be required to remain an open space, and the manner in which it will be improved and maintained, if at all.
Property for public agencies. Statement of those portions, if any, of the redevelopment area which are proposed to be sold, donated, exchanged or leased to any public agency or political subdivision of the Federal, State or local government, and an outline of the terms of such proposed sale, donation, exchange or lease.
Zoning changes. A statement of the proposed changes, if any, in zoning ordinance or maps, necessary or desirable for the redevelopment project and its protection against blighting influences.
Street changes. A statement of the proposed changes in streets or street levels and proposed street closing within, adjacent to or in the proximity of the redevelopment area, if any.
Utility changes. A statement of the changes, if any, which will be required in utility source to accommodate the redevelopment project and changes, if any, in utility lines, easements or location.
Tax abatement. A statement of the tax abatement to the redevelopment project, if any, and any payments in lieu of taxes, together with the conditions upon which tax abatement, if any, will pass to or insure to the benefit of a subsequent owner of the redevelopment project or be lost.
Acquisition plan, eminent domain. A statement giving the legal description of the real property owned by or under option or contract of purchase, if any, to the corporation or its affiliates, and where known, the real property to be acquired by eminent domain and time schedule for acquisition.
Eminent domain by City. A statement giving the legal description of the real property, if any, to be acquired by the City on behalf of the corporation and the terms and conditions for such acquisition.
Financing. A detailed statement of the proposed method of financing the redevelopment project which shall set forth the estimated development cost of the project and the proposed sources of funds, debt and equity to meet such estimated costs; the assurances, if any, to be given to the City by the corporation and its affiliates for the corporation's performance of its obligations.
Management. A list of the persons who it is proposed will be active in or associated with the corporation and management of the redevelopment project during a period of at least one (1) year from the date of approval of the development plan and a list of the officers, directors and principal stockholders of the corporation.
Public property. A statement listing any real property in the redevelopment area in public use or belonging to the City, County, State or any political subdivision thereof together with a statement that the consent of such entity, other than City, has been obtained to the acquisition of such property if such property is to be acquired.
Other information. The development plan may also contain such other statements or exhibits as may be deemed relevant by the City Council.
Promptly upon the filing of a proposed development plan with the City Manager or designee, the City Manager or designee shall, in writing, notify the City Council that a proposed development plan has been submitted for consideration and shall transmit copies thereof to them and to any department, division or commission of the City which the City Manager or designee deems may be affected or have an interest in such proposed development plan, requesting comments to be made to the City Manger or designee.
The City Manager or designee may request in writing additional information relating to any facet of the proposed development plan.
The City Council may, in its discretion, waive any irregularity or omission in any proposed development plan at any time after the filing thereof (including the time after approval of a development plan).
Editor's Note — Ord. no. 5137 §1, adopted April 12, 2010, repealed section 425.090 "recommendation of commission" in its entirety. Former section 425.090 derived from ord. no. 4263 §10, 2-6-1989.
Prior to or contemporaneously with the introduction to the City Council of a bill having as its subject matter the approval of a development plan and authorizing execution of a contract, the City Council shall hold a public hearing thereon. Notwithstanding anything else in the Municipal Code to the contrary, the City shall provide at least ten (10) days' notice of such hearing by publication. The public hearing on the ordinance approving the development plan and authorizing execution of a contract with the City shall be held for the purpose of stimulating comment by those to be affected by such contract and development plan.
In the event the development plan provides for tax abatement or exemption authorized by the Urban Redevelopment Corporations Law, the City shall furnish each political subdivision whose boundaries for ad valorem taxation purposes include any portion of the real property to be affected by such tax abatement or exemption with a written statement of the impact on ad valorem taxes such tax abatement or exemption will have on such political subdivisions and written notice of the hearing to be held. The written statement and notice required by this paragraph shall be mailed to each political subdivision by registered or certified mail, postage prepaid, return receipt requested, at least fifteen (15) days prior to the hearing and shall include, but need not be limited to, an estimate of the amount of ad valorem tax revenues for each political subdivision which will be affected by the proposed tax abatement or exemption based upon the estimated assessed valuation of the real property involved as such property would exist before and after it is developed. At the public hearing, all political subdivisions described in this paragraph shall have the right to be heard on such grant of tax abatement or exemption.
Such other matters as may be deem relevant by the City Council including, but not limited to, requirements for payment or reimbursement by the developer of legal, administrative, and other expenses necessitated by the development plan or redevelopment project, and for future expenses including, but not limited to, costs of defense of the City or its officers, insurance, indemnity and hold harmless agreements.
Notwithstanding any other provision of law to the contrary, payments in lieu of taxes may be imposed by contract between the City and the corporation which receives tax abatement or exemption on property pursuant to the Urban Redevelopment Corporations Law. Such payment shall be made to the Collector of Revenue of the County by December thirty-first (31st) of each year payments are due. The City Council shall furnish the Collector a copy of such contract requiring payment in lieu of taxes. The Collector shall allocate all revenues received from such payment in lieu of taxes among all taxing authorities whose property tax revenues are affected by the exemption or abatement on the same pro rata basis and in the same manner as the ad valorem property tax revenues received by each taxing authority from such property in the year such payments are due.
A copy of the contract between the City and the corporation for carrying out the development plan may be recorded by the corporation of the City in the office of the Recorder of Deeds of St. Louis County and proof of such recording shall be filed with the City. True copies of the development plan authorized by the City Council by ordinance shall be retained with the authorizing ordinance by the City Clerk.
Investigation. It shall be the duty of the Zoning Administrator, after a development plan has been authorized by the City Council, to investigate and determine from time to time during construction of the redevelopment project whether the corporation undertaking such development plan is fully complying with the provisions thereof and its contract with the City in the manner and at the fixed therein for the performance of the various stages thereof.
Reports. It shall also be the duty of the Zoning Administrator to make reports from time to time during the construction of the redevelopment project, and at least every six (6) months, to the City Council and the City Manager regarding each development plan, and also as to compliance with the provisions of this Chapter by any corporation operating thereunder.
Time extension. The City Council may, for good cause shown, grant to a corporation operating under an approved development plan an extension of time in which to complete the redevelopment project, or any phrase, stage or portion thereof.
Recommendation of certification. When a corporation operating under an approved development plan shall have completed the redevelopment project or any stage thereof in accordance with the provisions of the development plan in the manner and at the time fixed therein for the performance of the various stages thereof, the Zoning Administrator, upon the written request of such corporation, shall conduct an investigation, and if the Zoning Administrator determines that the redevelopment project or such stage thereof has been so completed, he/she shall recommend to the City Council that a certificate of full compliance be issued to such corporation for such stage or for the entire project, as the case may be.
In the event that the City Council determines that the redevelopment project or any stage thereof has not been completed, then the Council shall transmit notice by certified mail, return receipt requested, to the corporation stating the reasons for the finding that there has not been substantial compliance.
Provided however, failure to so notify the corporation within thirty (30) days after receipt of said written request shall be deemed a certification of completion.
The investigations and reports of the Zoning Administrator required by Subsections (1) and (2) of this Section shall not be required or made with respect to the redevelopment project or to any approved stage thereof subsequent to the date of issuance of such certificate with respect to such redevelopment project or stage thereof.
Such statement shall be filed annually within one hundred twenty (120) days following the close of the corporation's fiscal year, and the first (1st) such statement shall be filed for such corporation's fiscal year ending in the calendar year next following the calendar year in which the ordinance approving the development plan became law.
The City Manager shall arrange for the review of all financial statements submitted to him/her. The City Manager shall determine the net income of the corporation and shall determine whether the accumulation of surplus net earning as defined by law, if any, is being handled as provided by law.
In the event such corporation's net income is not more than the maximum allowed by law or in the event the corporation's net income during any year is more than the maximum allowed by law and the accumulation of surplus net earnings is being handled as provided by law, then the City Manager shall certify to the Assessor of St. Louis County on or before April first (1st) of each calendar year following the year the statement was required to be submitted under this Section that such corporation is eligible under the tax abatement provisions contained in the Urban Redevelopment Corporations Law.
In the event the corporation's net income is more than the maximum allowed by law and the surplus is not being handled as provided by law, then the City Manager shall certify to the Assessor of St. Louis County on or before April first (1st) of the year following the year in which the statement was required to be submitted under this Section that such corporation is not eligible under the tax exemption provisions contained in the Urban Redevelopment Corporations Law.
In the event that the certification is that the corporation is eligible for tax abatement, in whole or in part, to property owned by the corporation, the Assessor shall forthwith assess, in whole or in part, the property of the corporation as provided in Section 353.110, Revised Statutes of Missouri.
A corporation may sell or otherwise dispose of any or all of the real property acquired by it for the purpose of a redevelopment project. The development plan, the ordinance approving any development plan, and any contract entered into pursuant thereto may provide that in the event of the sale or other disposition of real property of a corporation by reason of the foreclosure of any mortgage or other lien through insolvency or bankruptcy proceedings or by order of any court of competent jurisdiction, or by voluntary transfer or otherwise, the partial tax relief provided under the Urban Redevelopment Corporations Law shall inure to any purchaser of real property so long as such purchaser shall continue to use, operate and maintain such real property in accordance with the provisions of the development plan. If such development plan, ordinance and contract do not so provide and the purchaser of such real property shall continue to use, operate and maintain such real property in accordance with the provisions of the development plan, the Council may grant the partial tax relief provided in the Urban Redevelopment Corporations Law. If such real property shall not be used, operated and maintained in accordance with the provisions of the development plan, or if the purchaser does not desire the property to continue under the development plan, or if the ordinance approving the plan provides for termination of tax relief under such circumstances, the City Council may refuse to grant the purchaser continuing tax relief, the real property shall be assessed for ad valorem taxes upon the full true value of the real property and except as provided by contract may be owned and operated free from any of the conditions, restrictions or provisions of this Chapter and the development plan.
Proceedings. Whenever any person or corporation operating under a development plan does not substantially comply with the development plan and the contract with the City within the time limits and in the manner as therein stated, reasonably delays caused by unforeseen circumstances beyond their control alone excepted, or shall do or permit to be done anything in violation of the development plan, the development contract, or this Chapter, or fail or omit to do anything required of it by the development plan, the development contract or this Chapter, or shall be about so to do, permit to be done, or fail or omit to have done, then any such fact may be certified by the City Council to the City Attorney who may and is hereby authorized to commence a proceeding in the Circuit Court or other appropriate court or forum in the name of the City to have such action, failure or omission or threatened action or omission stopped, prevented, rectified or enforced by injunction or otherwise, or in the name of the City to bring action for damages against the corporation for breach of any of the provisions of the development plan or the development contract; provided that in the event the Council shall determine that a corporation has abandoned construction before completion of the redevelopment project in accordance with the terms of an approved development plan, a certified copy of the resolution of the City Council making such determination shall be recorded in the office of the St. Louis County Recorder of Deeds and the real property included in such plan shall from that date be subject to assessment and payment of all ad valorem taxes based on the true value of such real property. The City Council, after consultation with the City Attorney, may elect to terminate a development contract for non-performance or breach by the other contracting party.
The Sections of this Chapter shall be severable. In the event any Section of this Chapter is found by a court of competent jurisdiction to be invalid, the remaining Sections of this Chapter are valid, unless the court finds the valid Sections of this Chapter are so essentially and inseparably connected with, and so dependent upon the void Section that it cannot be presumed the City Council would have enacted the valid Sections without the void Section, or unless the court finds that the valid Sections standing alone are incomplete and are incapable of being executed in accordance with the legislative intent.
On a not-for-profit basis by any organization that has obtained an exemption from the payment of Federal income taxes as provided in Section 501(c)(3) of Title 26, U.S.C., as amended, and veterans organizations.
Any person who is deaf, legally blind or orthopedically disabled to the extent that acquisition of another residence presents a greater burden than other persons would encounter or to the extent that modifications to the replacement residence would be necessary.
Any individual, family, partnership, corporation or association that has a legal right to occupy the property including, but not limited to, month-to-month tenants.
Every urban redevelopment corporation acquiring property within a redevelopment area shall submit a relocation plan as part of the redevelopment plan.
A notice of relocation eligibility that shall be issued as soon as feasible after the execution of the redevelopment agreement and shall inform residential and non-residential occupants within the project area who will be displaced of their relocation assistance and nature of that assistance, including ninety (90) days' advance notice of the date the occupants must vacate.
Every displaced person shall be given a ninety (90) day notice to vacate, prior to the date such displaced person is required to vacate the premises.
Actual reasonable costs of relocation including, but not limited to, actual moving costs, utility deposits, key deposits, storage of personal property up to one (1) month, utility transfer and connection fees and other initial rehousing deposits including first (1st) and last month's rent and security deposit. Such costs of relocation shall not include the cost of a replacement property or any capital improvements thereto.
Actual costs of moving including costs for packing, crating, disconnection, dismantling, reassembling and installing all personal equipment and costs for relettering similar signs and similar replacement stationery and up to an additional ten thousand dollars ($10,000.00) for re-establishment expenses. Re-establishment expenses are limited to actual costs incurred for physical improvements to the replacement property to accommodate the particular business at issue.
Any displaced person, who is also the owner of the premises, may waive relocation payments as part of the negotiations for acquisition of the interest held by such person. Such waiver shall be in writing, shall disclose the person's knowledge of the provisions of this Section and his entitlement to payment and shall be filed with the acquiring public agency. However, any such waiver shall not include a waiver of any notice provisions of this Section, and a displaced person shall remain entitled to all of the provisions regarding programs which are contained in Subsections (C)(2) and (C)(3) of this Section.
All persons eligible for relocation benefits shall be notified in writing of the availability of such relocation payments and assistance, with such notice to be given concurrently with the notice of referral sites as required in Subsection (C)(4) of this Section.
Any urban redevelopment corporation, its assigns or transferees, which have been provided any assistance under the operation of Chapter 99, RSMo., Chapter 100, RSMo., Chapter 353, RSMo., or this Chapter, with land acquisition by the local Governing Body, shall be required to make a report to the local Governing Body or appropriate public agency which shall include, but not be limited to, the addresses of all occupied residential buildings and structures within the redevelopment area and the names and addresses of persons displaced by the redeveloper and specific relocation benefits provided to each person, as well as a sample notice provided to each person.
An urban redevelopment corporation which fails to comply with the relocation requirements provided in this Section shall not be eligible for tax abatement as provided for in Chapter 353, RSMo.
The requirements set out in this Section shall be considered minimum standards. In reviewing any proposed relocation plan under the operation of Chapter 99, RSMo., Chapter 100, RSMo., or Chapter 353, RSMo., the City shall determine the adequacy of the proposal and may require additional elements to be provided.
The provisions of this Section shall apply to land acquisitions under the operation of Chapter 99, RSMo., Chapter 100, RSMo., or Chapter 353, RSMo., filed for approval, approved or amended on or after August 31, 1991 and, as provided by this Section, any other land acquisition by the City through condemnation proceedings initiated after December 31, 2006.


UNITED STATES OF AMERICA, Plaintiff, v. BERNARDO OLIVARES-CEPEDA, Defendant.
This case is before the Court for decision on the merits of Defendant's Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 156). In response to the Motion, the Magistrate Judge ordered the Government to file an Answer (ECF No. 158) which the Government has now done (ECF No. 166). Defendant asked the Court to ignore the Answer because it was late (ECF No. 168), but the Court denied that request (ECF No. 169). In the Order denying that request, the Court reminded Mr. Olivares-Cepeda that he was permitted to file a reply to the Answer by October 28, 2016, but he has not done so and his time to file a reply has expired.
Olivares-Cepeda pleaded guilty to conspiracy to distribute methamphetamine pursuant to a written Plea Agreement filed January 27, 2014 (ECF No. 63). As part of the Plea Agreement, Olivares-Cepeda signed the attached Statement of Facts in which he admitted conspiring with others to have approximately six kilograms of crystal meth brought to Cincinnati, Ohio, and there distributed for cash. As part of the Statement of Facts, Olivares-Cepeda admitted stating to the intended recipient that "the crystal methamphetamine was 'good stuff' but offered that if it was 'trash' then they would send it back." Id. at ¶ 11. During the plea colloquy, Olivares-Cepeda admitted he had discussed the charges with his attorney and understood the meaning of the charged offense of conspiracy (Tr., ECF No. 146, PageID 696). Mr. Olivares-Cepeda was sworn and then answered Judge Dlott's questions. Id. at PageID 697. He again stated he understood the charges, that his attorney was fully informed, and that he was fully satisfied with the legal advice he had been given. Id. at PageID 699. He indicated he understood Judge Dlott could only determine a sentence after considering the Presentence Investigation Report ("PSR") that would be prepared by the Probation Department, but that he would have an opportunity to challenge the facts or conclusions made in the PSR. Id. at PageID 703-04. Olivares-Cepeda admitted he had read the Plea Agreement, discussed it with counsel, and understood its terms. Id. at PageID 711-712. As is her practice, Judge Dlott had the elements of the conspiracy offense read and Mr. Olivares-Cepeda admitted he was guilty of each of the elements. Id. at PageID 713-714.
The Court: Did you hear what the special agent just said?
The Court: Is what he said correct?
The Defendant: Not all of it, but yeah.
The Court: Well, what isn't correct?
Mr. Williams: -- to be guilty of conspiracy. And so he admits his guilt in the conspiracy as he is involved with Caro.
Mr. Williams: But he does not admit he knew these other three guys.
The Defendant: I never met them before.
Id. at PageID 719-21. After this discussion, Olivares-Cepeda again admitted that he was in fact guilty of conspiracy to possess with intent to distribute methamphetamine. Id. at PageID 721. Judge Dlott found the plea to be knowing and voluntary and accepted it. Id. at PageID 722. Before concluding the proceeding, she again stated Defendant would have an opportunity to challenge errors or discrepancies in the PSR. Id. The only Objection Defendant first made to the PSR was his claim that he should have been given a 2 level reduction as a minor participant (Objections, ECF No. 65, PageID 282). Then two months later, in an Addendum to the Objections, he denied having made the statement to the confidential informant that he had previously admitted (ECF No. 88).
At sentencing Mr. Williams argued Mr. Olivares-Cepeda was a minor participant and should receive that classification under the Sentencing Guidelines (ECF No. 147, PageID 734). The Government presented testimony that the statement was made from the lead case agent, Candice Flahert, and had presented the same testimony form Agent Baker at a bond review hearing. Id. at PageID 736, 742. Government's counsel also adverted to post-arrest statements made by Mr. Olivares-Cepeda, reported in the PSR, which show much great involvement in the drug business than merely "riding along" with his brother-in-law, Defendant Caro. Id. at PageID 738. Ultimately Mr. Williams indicated Mr. Olivares-Cepeda had admitted his guilt from the time of his arrest and did not want to withdraw his plea. Offered an opportunity to speak further, Defendant said nothing about withdrawing his plea. Adopting a Guideline range of 188 to 235 months, Judge Dlott sentenced Olivares-Cepeda to 200 months imprisonment. Id. at PageID 763.
Defendant asserts that his conviction is unconstitutional because he was deprived of the effective assistance of counsel. He claims his attorney did not understand the law of conspiracy, relied on false facts as a result of failure to conduct an adequate pre-trial investigation, and failed to consult with him on the offer to allow him to withdraw his guilty plea and go to trial (Motion, ECF No. 156, PageID 836).
defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing Knowles v. Mirzayance, 556 U.S. 111 (2009).
Judicial scrutiny of counsel's performance must be highly deferential. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."
The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to overcome confidence in the outcome.
466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). See generally Annotation, 26 ALR Fed 218.
The Supreme Court has made it clear that the right to effective assistance of counsel fully applies at the plea negotiation stage of criminal proceedings. Missouri v. Frye, 566 U.S. 133 (2012); Lafler v. Cooper, 566 U.S. 156 (2012).
Although Olivares-Cepeda makes broad and conclusory allegations about what he did not know before signing the Plea Agreement, his real claim seems to be that Mr. Williams should have had the recording translated and transcribed before the Plea Agreement was signed. But the record shows that the playing of the recording before the plea was cut-off at Olivares-Cepeda's request. That is, he was given an opportunity to hear the whole recording before he swore under oath that he had said what the Government claimed he said to the informant. Moreover, he had ample opportunity to say what he did not understand about conspiracy before he told Judge Dlott twice that he understood the offense he was pleading to. And he was in the courtroom when Judge Dlott offered to allow withdrawal of the guilty plea and did not speak up, either to say he wanted to go to trial or to ask for an opportunity to confer with counsel.
Defendant appealed to the Sixth Circuit which affirmed his conviction, finding his plea knowing and voluntary and reciting many of the admissions repeated above. United States v. Olivares-Cepeda, Case No. 14-3701 (6th Cir. Apr. 10, 2015)(unreported, copy at ECF No. 151).
The only thing Mr. Olivares-Cepeda adds to the record that was not before this Court at sentencing or before the Sixth Circuit on appeal is the Affidavit of Heriberto Caro, his co-defendant (ECF No. 156-1, PageID 850). He swears that Olivares-Cepeda "was only a passenger in my car and was not involved in the transaction in any way. However, he was aware of what I was doing. [He] derived absolutely no benefit from the drug transactions. He was merely and only along for the ride and to keep me company." Id. However, as the United States points out, these statements are directly contradictory to statements Mr. Caro made in his own Plea Agreement and in his change of plea proceeding (ECF No. 166, PageID 903, citing ECF No. 39 and 146).
A plea of guilty or no contest is valid if, but only if, it is entered voluntarily and intelligently, as determined by the totality of the circumstances. Brady v. United States, 397 U.S. 742, 748 (1970); Boykin v. Alabama, 395 U.S. 238, 242-44 (1969); King v. Dutton, 17 F.3d 151 (6th Cir. 1994); Riggins v. McMackin, 935 F.2d 790, 795 (6th Cir. 1991); Berry v. Mintzes, 726 F.2d 1142, 1146 (6th Cir. 1984). The determination of whether this plea was intelligently made depends upon the particular facts and circumstances of each case. Johnson v. Zerbst, 304 U.S. 458, 463 (1938); Garcia v. Johnson, 991 F.2d 324, 326 (6th Cir. 1993).
A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e. g. bribes).
Brady, 397 U.S. at 755. The voluntariness of a guilty or no contest plea is determined in light of all relevant circumstances surrounding the plea. Id. at 749. If a prosecutor's promise is illusory, then a plea is involuntary and unknowing. United States v. Randolph, 230 F.3d 243, 250-51 (6th Cir. 2000). However, where a defendant is "fully aware of the likely consequences" of a plea, it is not unfair to expect him to live with those consequences. Mabry v. Johnson, 467 U.S. 504, 511 (1984). A plea-proceeding transcript which suggests that a guilty or no contest plea was made voluntarily and knowingly creates a "heavy burden" for a petitioner seeking to overturn his plea. Garcia v. Johnson, 991 F.2d 324, 326-28 (6th Cir. 1993). Where the transcript shows that the guilty or no contest plea was voluntary and intelligent, a presumption of correctness attaches to the state court findings of fact and to the judgment itself. Id. at 326-27. By entering a plea of guilty, the accused is not simply stating that he did the discrete acts described in the indictment; he is admitting guilt of a substantive crime. United States v. Broce, 488 U.S. 563, 570 (1989); McCarthy v. United States, 394 U.S. 459, 466 (1969).
Olivares-Cepeda's guilty plea was taken, as the Sixth Circuit found, in compliance with Fed. R. Crim. P. 11. He swore to the truth of the Statement of Facts and his co-defendant Caro did likewise. Even if the recording was not transcribed before the plea, the transcript was available at the time of sentencing and the DEA agent testified to the truth of the statement made to the informant which Olivares-Cepeda had admitted when pleading guilty and never repudiated until filing the instant Motion.
Defendant's claims of ineffective assistance of trial counsel are without merit and the instant Motion should be DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. November 8, 2016.
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within fourteen days after being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days because this Report is being served by one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendations are based in whole or in part upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections within fourteen days after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).


ELDON E. FALLON UNITED STATES DISTRICT JUDGE.
This case initially involved a claim brought under the Hague Convention on the Civil Aspects of International Child Abduction. Soonhee Kim (“Petitioner” or “Mother”) is the mother of L.J.F. (born in 2007) and A.J.F. (born in 2009) (the “children”). On December 9, 2017, she petitioned this Court to return her two children to Thailand, asserting that on or before August 13, 2017, Kamau Bakari Ferdinand (“Respondent” or “Father”), the children's father, wrongfully retained them in Louisiana.
This matter was tried before the Court, sitting without a jury, on February 1, 2018. The purpose of the trial was not to determine the children's parental custody, but rather to identify the children's habitual residence. Based on the record presented at trial, the Court concluded that the children's habitual residence is Thailand and ordered their prompt return. See generally Soonhee Kim v. Ferdinand, No. CV 17-16180, 2018 WL 721455 (E.D. La. Feb. 6, 2018).
Because the Petitioner was the prevailing party, she is now entitled to attorney's fees and costs under Article 26 of the Convention and 42 U.S.C. § 11607(b). On February 27, 2018, Plaintiff filed the instant motion for attorney's fees and necessary expenses, requesting $89, 310.08 that included court costs, legal fees, and travel costs between Thailand and the United States. See Rec. Doc. 57. Respondent opposes this motion, arguing that Petitioner's attorney's fees are excessive and such award is “clearly inappropriate” under 42 U.S.C. § 11607(b)(3). Rec. Doc. 58. Having reviewed the parties' submissions and the applicable law, the Court now issues this Order and Reasons.
Any court ordering the3 return of a child pursuant to an action brought under section 11603 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster homes or other care during the course of the proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate.
Under the Hague Convention, an award of fees and costs serves two purposes: (1) “to restore the applicant to the financial position he or she would have been in had there been no removal or retention, ” and (2) “to deter such removal or retention.” Hague Convention; Text and Legal Analysis, 51 Fed. Reg. 10494-01, 10511 (Mar. 26, 1986). “The sparse legislative history of the [ICARA's fee-shifting] provision reveals it was ‘intended to provide an additional deterrent to wrongful international child removals and retentions.'” Souratgar v. Lee Jen Fair, 818 F.3d 72, 80 (2d Cir. 2016) (quoting H.R. Rep. No. 100-525, at 14 (1988), as reprinted in 1988 U.S.C.C.A.N. 386, 395). Nonetheless, in this fee-shifting context, “Congress built a safety valve directly into the statute, leaving it to courts to determine when an award of expenses would be clearly inappropriate, notwithstanding the additional deterrence value such expenses might provide.” Id.
A party seeking an award of attorney's fees must submit adequate evidence detailing the hours worked and his or her rates. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). It is the Respondent's burden to show that an award of attorney's fees and costs would be “clearly inappropriate.” Saldivar, 879 F.Supp.2d at 632.
Respondent argues that Petitioner's attorney's fees are excessive, especially compared to the New Orleans legal market. Furthermore, Respondent argues that his “crippling financial” status does not afford him the ability to cover Petitioner's expenses. Respondent represents that he has no “savings, investments, or the promise of future income.” Rec. Doc. 58 at 16. He recently resigned his position as a teacher in New Orleans so he could return to Thailand with the children. According to Respondent, he relies on “secured and unsecured loans for living expenses and litigation expenses incurred in this case.” Id. at 17. He submitted an affidavit declaring negative net worth of $81, 914.40. Rec. Doc. 58-3. As indicated on his financial statement, chief among his liabilities are unsecured loans of $50, 000.00 and debt from litigation fees and costs of $52, 943.30. Id. Therefore, given his financial hardship, Respondent claims that it would be clearly inappropriate to require him to pay Petitioner's fees and costs from this case.
The Court's analysis of an award for attorney's fees proceeds in two parts. First, the Court determines whether Petitioner's attorney's fees are in fact reasonable. Second, the Court examines whether it would be “clearly inappropriate” under 42 U.S.C. § 11607(b)(3) to require Respondent to reimburse Petitioner given his claimed financial status. Finally, after due consideration of the totality, the Court apportions an equitable award between Petitioner and Respondent for attorney's fees and costs.
The lodestar method is traditionally used to determine an appropriate attorney's fees award in Hague Convention cases. See Salazar, 750 F.3d at 523; see e.g., Freier v. Freier, 985 F.Supp. 710, 712 (E.D. Mich. 1997) (determining the amount of “reasonable attorney's fees” under ICARA by employing the lodestar formula); Berendsen v. Nichols, 938 F.Supp. 737, 738 (D. Kan. 1996) (same). Moreover, the lodestar approach is “generally applicable to all cases in which Congress has authorized an award of fees to a ‘prevailing party.'” Hensley v. Eckhart, 461 U.S. 424, 433 n.7 (1983).
Under the lodestar method, the amount of a fees award is calculated by “multiplying the reasonable hourly rate by the number of hours reasonably expended.” McClain v. Lufkin Indus., Inc., 519 F.3d 264, 282 (5th Cir. 2008). This is then tested based on an analysis of twelve factors known as the Johnson factors, which was first formulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974). These factors include (a) the time and labor required; (b) the novelty and difficulty of the questions; (c) the skill required to perform the legal service properly; (d) the preclusion of other employment by the attorneys due to acceptance of the case; (e) the customary fee; (f) whether the fee is fixed or contingent; (g) time limitations imposed by the client or circumstances; (8) the amount involved and the results obtained; (h) the experience, reputation, and ability of the attorneys; (i) the ”undesirability” of the case; (j) the nature and length of the professional relationship with the client; and (k) awards in similar cases. Id. at 717-19; see also Von Clark v. Butler, 916 F.2d 255, 258 (5th Cir. 1990). A review of these factors as they apply to the facts of this case is appropriate.


65-3424g. Waste tire management fund. (a) There is hereby established in the state treasury the waste tire management fund.
(6) any other moneys provided by law.
(6) grants to local units of government and any public or private school for grades kindergarten through twelve to pay up to 50% of the costs to purchase tire derived products made from recycled waste tires. As used in this section, "tire derived products" means athletic field surfacing, playground cover, horticulture products and molded or extruded rubber products made from recycled waste tires.
(d) All grant applications received for waste tire recycling grants shall be reviewed by the solid waste grants advisory committee established pursuant to K.S.A. 65-3426, and amendments thereto. Waste tire recycling grants shall be subject to the requirements set forth in subsection (g) of K.S.A. 65-3415, and amendments thereto, related to the misuse of grant funds with the exception that any grant funds recovered by the secretary shall be deposited to the waste tire management fund. Waste tire management funds shall be used only for waste tire recycling grants. Waste tire grants shall not be awarded, nor shall waste tire funds be disbursed to a grant recipient, if the department determines that the grant applicant or recipient is operating in substantial violation of applicable environmental laws or regulations administered by the department.
(e) All expenditures from the waste tire management fund shall be made in accordance with appropriations acts upon warrants of the director of accounts and reports issued pursuant to vouchers approved by the secretary.
(f) On or before the 10th of each month, the director of accounts and reports shall transfer from the state general fund to the waste tire management fund interest earnings based on: (1) The average daily balance of moneys in the waste tire management fund for the preceding month; and (2) the net earnings rate for the pooled money investment portfolio for the preceding month.
History: L. 1990, ch. 319, § 8; L. 1991, ch. 197, § 7; L. 1994, ch. 283, § 7; L. 1996, ch. 253, § 38; L. 2000, ch. 103, § 4; L. 2001, ch. 126, § 5; L. 2003, ch. 130, § 19; L. 2007, ch. 118, § 1; L. 2009, ch. 117, § 2; July 1.
Section was also amended by L. 1996, ch. 173, § 7, but that version was repealed by L. 1996, ch. 253, § 40.


text:
If the defense raises present sufficient evidence, which if true, constitute UCI, then the burden is going to shift to the government to prove that those facts did not exist; if they did, that the facts do not amount to UCI; or if the facts do amount to UCI, then the proceedings will not be affected by UCI. By taking remedial actions – either the convening authority before referral, or the military judge or convening authority after referral – the government may be able to prevent the UCI from tainting the proceedings.
The remedies that follow are not mandatory for each case. United States v. Roser, 21 M.J. 883 (A.C.M.R. 1986). Remedies should be appropriately tailored for each case. Before trial (directed by the convening authority or SJA).
Rescind or clarify letters and pronouncements. See United States v. Rivers, 48 M.J. (C.A.A.F. 1998); United States v. Stoneman, 57 M.J. 35 (C.A.A.F. 2002); United States v. Reed, 65 M.J. 487 (C.A.A.F. 2008).
Tell the witness that they need to testify and that no one is intending to influence him or her. See United States v. Bradley, 48 M.J. 777 (A.F. Ct. Crim. App. 1998).
Reprimand the offending official in front of the people that he tried to improperly influence. United States v. Roser, 21 M.J. 883 (A.C.M.R. 1986).
Rescind or clarify letters and pronouncements. United States v. Griffin, 41 M.J. 607 (A. Ct. Crim. App. 1994).
Tell the subordinate commander (in writing) that he or she is free to choose any disposition that he or she thinks is appropriate. See generally United States v. Stirewalt, 60 M.J. 297 (C.A.A.F. 2004).
The defense can seek to waive the issue in exchange for a favorable pretrial agreement. United States v. Weasler, 43 M.J. 15 (C.A.A.F. 1995).
Allow extensive voir dire. United States v. Stoneman, 57 M.J. 35 (C.A.A.F. 2002); United States v. Martinez, 42 M.J. 327 (C.A.A.F. 1995).
Allow extensive fact finding, to include interviews of and cross examination of those who may have committed UCI. United States v. Simpson, 58 M.J. 368 (C.A.A.F. 2003).
Issue curative instructions. United States v. Martinez, 42 M.J. 327 (C.A.A.F. 1995).
Order the government to retract the offending policy statement. United States v. Sullivan, 26 M.J. 442 (C.M.A. 1998).
Grant continuances to investigate the issue. United States v. Sullivan, 26 M.J. 442 (C.M.A. 1998); United States v. Douglas, 68 M.J. 349 (C.A.A.F. 2010).
Issue a blanket order to produce all witnesses requested by the defense. United States v. Sullivan, 26 M.J. 442 (C.M.A. 1998).
Advise each witness that it is his duty to testify and assure them that no adverse consequences would follow. United States v. Sullivan, 26 M.J. 442 (C.M.A. 1998); United States v. Douglas, 68 M.J. 349 (C.A.A.F. 2010) (the parties fashioned a letter that was to be given to potential witnesses).
Order that the government to transfer the person who committed UCI. United States v. Sullivan, 26 M.J. 442 (C.M.A. 1998); United States v. Biagase, 50 M.J. 143 (C.A.A.F. 1999).
Prevent the government from calling aggravation evidence. United States v. Clemons, 35 M.J. 770 (A.C.M.R. 1992).
Not allow the government to attacked the accused’s reputation by opinion or reputation testimony. United States v. Clemons, 35 M.J. 770 (A.C.M.R. 1992); United States v. Giarratano, 20 M.J. 553 (A.C.M.R. 553).
Give the defense wide latitude with witnesses. United States v. Clemons, 35 M.J. 770 (A.C.M.R. 1992).
Allow the accused to testify about what he thought witnesses might have said (as substantive evidence on merits or E&M). United States v. Clemons, 35 M.J. 770 (A.C.M.R. 1992).
Preclude the government from presenting evidence through direct or cross examination about the accused’s rehabilitative potential. United States v. Souther, 18 M.J. 795, 796 (A.C.M.R. 1984).
Offer to sustain any challenge for cause against any member who was present in command during period of UCI. United States v. Souther, 18 M.J. 795, 796 (A.C.M.R. 1984); United States v. Giarratano, 20 M.J. 553 (A.C.M.R. 553).
Dismiss the case with prejudice.
United States v. Gore, 60 M.J. 178 (C.A.A.F. 2004). CAAF upholds military judge’s decision to dismiss case with prejudice due to witness intimidation.
Dismissal should be the last resort. “If and only if the trial judge finds that command influence exists . . . and finds, further, that there is no way to prevent it from adversely affecting the findings or sentence beyond a reasonable doubt should the case be dismissed.” United States v. Jones, 30 M.J. 849, 854 (N.M.C.M.R. 1990).
If a commander has been coerced into preferring charges that he does not believe are true, the charges are treated as unsigned and unsworn. United States v. Hamilton, 41 M.J. 32 (C.M.A. 1994).
United States v. Douglas, 68 M.J. 349 (C.A.A.F. 2010). The military judge must follow up on the remedies and put it on the record that the remedies were fully implemented. Complete the Biagase analysis by saying what was done and that now the UCI that was found to exist will not prejudice the case beyond a reasonable doubt. If the military judge finds UCI but then does not complete the analysis, then the presumption still stands that the UCI will affect the proceeding. The record needs to reflect that the government has met its burden.

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